If the conditions formulated by the Court of Justice of the European Union in its judgment of 16 June 2015 (C-62/14) and intended to limit the scope of the OMT programme are met, the complainants’ rights under Art. 38 sec. 1 sentence 1, Art. 20 secs. 1 and 2 in conjunction with Art. 79 sec. 3 of the Basic Law (Grundgesetz – GG) are not violated by the fact that the Federal Government and the Bundestag have not taken suitable steps to revoke or limit the effect of the policy decision of the European Central Bank of 6 September 2012 concerning the OMT programme. Furthermore, if these conditions are met, the OMT programme does not currently impair the Bundestag’s overall budgetary responsibility. Such was the decision of the Second Senate of the Federal Constitutional Court in a judgment pronounced today. If interpreted in accordance with the Court of Justice’s judgment, the policy decision on the OMT programme does not “manifestly” exceed the competences attributed to the European Central Bank. Moreover, if interpreted in accordance with the Court of Justice’s judgment, the OMT programme does not present a constitutionally relevant threat to the German Bundestag’s right to decide on the budget.

Facts of the Case:

The constitutional complaints and the application for Organstreit proceedings [proceedings relating to disputes between constitutional organs] challenge two programmes aimed at the purchase of government bonds of Member States of the Euro zone on the secondary market by the European System of Central Banks (“ESCB”).
For further information please refer to press releases nos. 29/2013 of 19 April 2013 (available in German), 9/2014 of 7 February 2014, and 3/2016 of 15 January 2016.

Key Considerations of the Senate:

1. The constitutional complaints and the Organstreit proceedings are partially inadmissible. In particular, the constitutional complaints are inadmissible to the extent that they directly challenge acts of the European Central Bank. To that extent those acts cannot be challenged before the Bundesverfassungsgericht (German Federal Constitutional Court).

2. To the extent that the constitutional complaints and the application for Organstreit proceedings are admissible, they are unfounded.

a) By empowering the Federation to transfer sovereign powers to the European Union (Art. 23 sec. 1 sentence 2 GG), the Basic Law also accepts a precedence of application of European Union law (Anwendungsvorrang des Unionsrechts). The legislature deciding on European integration matters may not only exempt institutions, bodies, offices and agencies of the European Union from being comprehensively bound by the guarantees of the Basic Law but also German entities that implement European Union law.

However, the precedence of application of European Union law only extends as far as the Basic Law and the relevant Act of Approval permit or envisage the transfer of sovereign powers. Therefore, limits for the opening of German statehood derive from the constitutional identity of the Basic Law guaranteed by Art. 79 sec. 3 GG and from the European integration agenda (Integrationsprogramm), which is laid down in the Act of Approval and vests European Union law with the necessary democratic legitimacy for Germany.

b) The fundamental elements of the principle of democracy (Art. 20 secs. 1 and 2 GG) are part of the constitutional identity of the Basic Law, which has been declared to be beyond the reach both of constitutional amendment (Art. 79 sec. 3 GG) and European integration (Art. 23 sec. 1 sentence 3 in conjunction with Art. 79 sec. 3 GG). Therefore, the legitimacy given to state authority by elections may not be depleted by transfers of powers and tasks to the European level. Thus, the principle of sovereignty of the people (Volkssouveränität) (Art. 20 sec. 2 sentence 1 GG) is violated if institutions, bodies, offices and agencies of the European Union that are not adequately democratically legitimised through the European integration agenda laid down in the Act of Approval exercise public authority.

c) When conducting its identity review, the Federal Constitutional Court examines whether the principles declared by Art. 79 sec. 3 GG to be inviolable are affected by transfers of sovereign powers by the German legislature or by acts of institutions, bodies, offices and agencies of the European Union. This concerns the protection of the fundamental rights’ core of human dignity (Art. 1 GG) as well as the fundamental principles that characterise the principles of democracy, of the rule of law, of the social state, and of the federal state within the meaning of Art. 20 GG.

When conducting its ultra vires review, the Federal Constitutional Court (merely) examines whether acts of institutions, bodies, offices and agencies of the European Union are covered by the European integration agenda (Art. 23 sec. 2 sentence 2 GG), and thus by the precedence of application of European Union law. Finding an act to be ultra vires requires – irrespective of the area concerned – that it manifestly exceed the competences transferred to the European Union.

d) Similar to the duties to protect (Schutzpflichten) mandated by the fundamental rights, the re-sponsibility with respect to European integration (Integrationsverantwortung) requires the constitutional organs to protect and promote the citizens’ rights protected by Art. 38 sec. 1 sentence 1 in conjunction with Art. 20 sec. 2 sentence 1 GG if the citizens are not themselves able to ensure the integrity of their rights. Therefore, the constitutional organs’ obligation to fulfil their responsibility with respect to European integration is paralleled by a right of the voters enshrined in Art. 38 sec. 1 sentence 1 GG. This right requires the constitutional organs to ensure that the drop in influence (Einflussknick) and the restrictions on the voters’ “right to democracy” that come with the implementation of the European integration agenda do not extend further than is justified by the transfer of sovereign powers to the European Union.

In principle, duties to protect are violated only if no protective measures are taken at all, if measures taken are manifestly unsuitable or completely inadequate, or if they fall considerably short of the protection’s aim. This means for the responsibility with respect to European integration (Integrationsverantwortung) that, if institutions, bodies, offices and agencies of the European Union exceed their competences in a manifest and structurally relevant manner or violate the constitutional identity in other ways, the constitutional organs must actively work towards respect of the European integration agenda. They may – within the scope of their competences – be required to use legal or political means to work towards revocation of measures that are not covered by the European integration agenda as well as – as long as the measures continue to have effect – to take suitable measures to restrict the national effects of such measures as far as possible. Just like the duties of protection inherent in fundamental rights, the responsibility with respect to European integration (Integrationsverantwortung) may in certain legal and factual circumstances concretise in such a way that a specific duty to act results from it.

3. According to these standards and if the conditions listed below are met, the inaction on the part of the Federal Government and of the Bundestag with regard to the policy decision of the European Central Bank of 6 September 2012 does not violate the complainants’ rights under Art. 38 sec. 1 sentence 1, Art. 20 secs. 1 and 2 in conjunction with Art. 79 sec. 3. Furthermore, the Bundestag’s rights and obligations with regard to European integration (Integrationsverantwortung) – including its overall budgetary responsibility – are not impaired.

a) The Federal Constitutional Court bases its review on the interpretation of the OMT decision formulated by the Court of Justice in its judgment of 16 June 2015. The Court of Justice’s finding that the policy decision on the OMT programme is within the bounds of the respective competences and does not violate the prohibition of monetary financing of the budget still remains within the mandate of the Court of Justice (Art. 19 sec. 1 sentence 2 TEU).

The Court of Justice bases its view to a large extent on the objectives of the OMT programme as indicated by the European Central Bank, on the means employed to achieve those objectives, and on the programme’s effects on economic policy, which – according to the Court of Justice – are only indirect in nature. It bases its review not only on the policy decision of 6 September 2012 concerning the technical details, but derives further framework conditions – in particular from the principle of proportionality –, which set binding limits for any implementation of the OMT programme. Furthermore, the Court of Justice affirms that acts of the European Central Bank are not exempt from judicial review, in particular regarding whether the principles of conferral and proportionality are complied with.

b) Nevertheless, the manner of judicial specification of the Treaty (Treaty on the Functioning of the European Union) evidenced in the judgment of 16 June 2015 meets with serious objections on the part of the Senate. These objections concern the way the facts of the case were established, the way the principle of conferral was discussed, and the way the judicial review of acts of the European Central Bank that relate to the definition of its mandate was conducted.

Firstly, the Court of Justice accepts the assertion that the OMT programme pursues a monetary policy objective without questioning or at least discussing and individually reviewing the soundness of the underlying factual assumptions, and without testing these assumptions with regard to the indications that evidently argue against a character of monetary policy.

Furthermore, – despite its own belief that economic and monetary policy overlap – the Court of Justice essentially relies on the objectives of the measure as indicated by the organ on review as well as on the recourse to the instrument of the purchase of government bonds enshrined in Art. 18 of the ESCB Statute when qualifying the OMT programme as an instrument belonging to the field of monetary policy.

Lastly, the Court of Justice provides no answer to the following issue: that the independence granted to the European Central Bank leads to a noticeable reduction in the level of democratic legitimation of its actions and should therefore give rise to restrictive interpretation and to particularly strict judicial review of the mandate of the European Central Bank. This holds all the more true if the principles of democracy and sovereignty of the people (Volkssouveränität) are affected – and thereby the constitutional identity of a Member State, which the European Union is required to respect.

c) Despite these concerns, if interpreted in accordance with the Court of Justice’s judgment, the policy decision on the OMT programme does not – within the meaning of the competence retained by the Federal Constitutional Court to review ultra vires acts – “manifestly” exceeds the competences attributed to the European Central Bank. Although – unlike the Senate – the Court of Justice does not question the indicated objectives and evaluates each of the signs that the Sen-ate holds to argue against the alleged objectives in an isolated manner instead of performing an overall evaluation, this is acceptable because on the level of the exercise of competences the Court of Justice has essentially performed the restrictive interpretation of the policy decision that the Senate’s request for a preliminary ruling of 14 January 2014 held to be possible.

The Court of Justice differentiates between the policy decision of 6 September 2012 on the one hand and the implementation of the programme on the other. With a view to the proportionality of the OMT programme and the fulfilment of the obligations to state reasons, it specifies additional compelling restrictions that apply to any implementation of the OMT programme and exceed the framework conditions indicated in the policy decision. Against this backdrop, one must assume that the Court of Justice considers the conditions it specified to be legally binding. In using procedural means to limit the ECB’s competences by reviewing whether the principle of proportionality has been observed, the Court of Justice takes up the issue of the nearly unlimited potential of the decision of 6 September 2012. The restrictive parameters developed by the Court of Justice do not completely remove the character of the OMT programme insofar as it encroaches upon economic policy. However, together with the conditions prescribed by the decision of 6 September 2012 – in particular the participation of Member States in adjustment programmes, Member States’ access to the bond market, and the focus on bonds with a short maturity – they make it appear acceptable to assume that the character of the OMT programme is at least to the largest extent monetary in kind.

d) If interpreted in accordance with the Court of Justice’s judgment, the policy decision on the technical framework conditions of the OMT programme as well as its possible implementation also do not manifestly violate the prohibition of monetary financing of the budget. Although the Court of Justice considers the policy decision to be permissible even without further specifications, its implementation must fulfil further conditions in order for the purchase programme to not violate Union law. Thusly interpreted, and when comprehensively assessed and evaluated, the OMT programme fulfils the requirements formulated by the Senate’s order of 14 January 2014 requesting a preliminary ruling by the Court of Justice.

e) Since, against this backdrop, the OMT programme constitutes an ultra vires act if the framework conditions defined by the Court of Justice are not met, the German Bundesbank may only participate in the programme’s implementation if and to the extent that the prerequisites defined by the Court of Justice are met; i.e. if

• purchases are not announced,

• the volume of the purchases is limited from the outset,

• there is a minimum period between the issue of the government bonds and their purchase by the ESCB that is defined from the outset and prevents the issuing conditions from being distorted,

• the ESCB purchases only government bonds of Member States that have bond market access enabling the funding of such bonds,

• purchased bonds are only in exceptional cases held until maturity and

• purchases are restricted or ceased and purchased bonds are remarketed should continuing the intervention become unnecessary.

f) Their responsibility with respect to European integration does not require the Federal Government and the Bundestag to take action against the OMT programme in order to protect the overall budgetary responsibility of the Bundestag. If interpreted in accordance with the Court of Justice’s judgment, the OMT programme does not present a constitutionally relevant threat to the Bundestag’s right to decide on the budget. Therefore, it can currently also not be established that implementation of the OMT programme would pose a threat to the overall budgetary responsibility.

g) However, due to their responsibility with respect to European integration (Integrationsverantwortung), the Federal Government and the Bundestag are under a duty to closely monitor any implementation of the OMT programme. This compulsory monitoring shall determine not only whether the abovementioned conditions are met, but also whether there is a specific threat to the federal budget – deriving in particular from the volume and the risk structure of the purchased bonds, which may change even after their purchase.

The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

Prohibition of Professional Partnership of Lawyers with Physicians and Pharmacists is Unconstitutional

Press Release No. 6/2016 of 02 February 2016

Order of 12 January 2016
1 BvL 6/13

59a sec. 1 sentence 1 of the Federal Lawyers’ Act (Bundesrechtsanwaltsordnung) is unconstitutional and void to the extent that it prohibits lawyers to establish a professional partnership with physicians and pharmacists for the joint practicing of their professions. Such was the decision by the First Senate of the Federal Constitutional Court in an order published today in specific judicial review proceedings conducted upon referral by the Federal Court of Justice (Bundesgerichtshof). The prohibition to establish a partnership (Sozietätsverbot) disproportionately interferes with the freedom to practice an occupation (Art. 12 sec. 1 of the Basic Law, Grundgesetz – GG). The legislature permits the association of lawyers with other professional groups – in particular with patent attorneys, tax consultants and auditors – in a professional partnership. Compared to such partnerships, an inter-professional cooperation of lawyers with physicians and pharmacists does not hold such considerable additional risks regarding compliance with a lawyer’s professional duties as to justify a different treatment.

Facts of the Case and Procedural History:

The two petitioners in the initial proceedings are a lawyer and a physician and pharmacist. They established a professional partnership and applied for its entry into the partnership register. A Local Court (Amtsgericht) and a Higher Regional Court (Oberlandesgericht) denied the registration arguing that such a partnership conflicts with the exhaustive regulation of § 59a sec. 1 sentence 1 of the Federal Lawyers’ Act (Bundesrechtsanwaltsordnung – BRAO), which does not list the professions of physician and pharmacist. The Federal Court of Justice suspended the proceedings and referred it to the Federal Constitutional Court for review.

Key Considerations of the Senate:

The question referred to the Court must be limited to the part of the reviewed § 59a sec.1 sentence 1 BRAO that is essential for the decision of the regular courts. With regard to the concerned professions it must be limited to the cooperation of lawyers with physicians and pharmacists; regarding the form of cooperation it must be limited to the professional partnership.

§ 59a sec. 1 sentence 1 BRAO is incompatible with Art. 12 sec. 1 GG in so far as the provision precludes an association between lawyers and physicians as well as pharmacists for joint practicing of their professions within a professional partnership.

a) It is true that the legislature pursues a legitimate purpose when interfering with the freedom to practice an occupation by limiting the professions permitted to combine in a professional partnership. The purpose of the provision is to ensure that the essential basic obligations of a lawyer stipulated in § 43a BRAO are complied with. These also include professional confidentiality, the prohibition to represent conflicting interests, as well as the duty to refrain from entering into professional relationships that compromise a lawyer’s professional independence.

b) It follows from the principle of proportionality that a law restricting fundamental rights must be suitable, necessary and appropriate to achieve the purpose pursued by the legislature. Accordingly, a law is necessary if the legislature could not have chosen another equally effective means with no or less restrictive impact on fundamental rights to achieve this purpose. A law is appropriate if an overall balancing of the weight of the interference, the significance and the priority of the reasons justifying it does not exceed the limits of reasonableness.

aa) To a large extent, the prohibition of a partnership with physicians and pharmacists is not necessary to ensure lawyers’ professional confidentiality; apart from that it is not appropriate.

(1) Violation of a lawyer’s obligation to maintain confidentiality under § 43a sec. 2 BRAO is subject to punishment according to § 203 sec. 1 no. 3 of the Criminal Code (Strafgesetzbuch – StGB). In principle, the legislature may bar those professions from joining a professional partnership for which a sufficient degree of confidentiality does not appear to be guaranteed. Following this approach, the legislature ruled out such deficits only for those professions mentioned in § 59a sec. 1 BRAO and hence permitted them to establish professional partnerships with lawyers.

(2) The legislative decision to thus exclude physicians and pharmacists from the group of professions permitted to establish a partnership is, however, generally already not necessary in order to safeguard the clients’ interest in confidentiality. When hiring an inter-professional partnership it is generally expected that client-related information is shared with the non-legal partners; sharing client-related information therefore does not constitute a breach of confidentiality. At least to a large extent, the prohibition of such a partnership is not necessary for protecting a lawyer`s confidentiality vis-à-vis third parties. Like lawyers, both physicians as well as pharmacists are obliged to maintain professional confidentiality. This obligation fully applies to all facts not generally known and which are confided to a professional in his or her professional capacity as physician or pharmacist or which he or she becomes aware of; a violation is subject to punishment under § 203 sec. 1 no. 1 StGB.

(3) In so far as the facts have not been confided or made known to the physician or pharmacist in this professional capacity, the non-legal partner is not obliged to maintain confidentiality. However, the requirement of proportionality stricto sensu is no longer met if the prohibition to establish a partnership is based solely on the fact that the non-legal partner is not obliged to maintain confidentiality in these cases. In order to provide competent legal advice and to be economically successful it may be essential for a law firm to offer legal assistance in specialised fields and establish to that end a permanent partnership with members of suitable professions. The resulting increased endangerment of confidentiality is small and does not justify the substantial interference with the freedom to practice an occupation. Notably, the legislature did not assume such additional risks in the case of those professions mentioned in § 59a sec. 1 BRAO and hence permitted them to establish partnerships with lawyers. But even in cooperation with professions allowed to establish a professional partnership under the above provision, situations might occur in which the non-legal partner becomes aware of circumstances that are subject to the lawyer’s confidentiality but not to his own professional obligation to maintain confidentiality. Furthermore, pursuant to § 30 sentence 1 and § 33 of the Federal Lawyers’ Rules of Professional Practice (Berufsordnung für Rechtsanwälte – BORA) it must be ensured that also the non-legal partners and the professional partnership observe the lawyers’ rules of professional practice.

(4)Prohibiting professional partnerships of lawyers with physicians and pharmacists is, to a large extent, not necessary or at least not appropriate for safeguarding the lawyer’s rights to refuse to testify. According to the relevant rules of procedure, physicians and pharmacists can claim their own right to refuse to testify. If, in individual cases, there should be situations in which the non-legal person’s right to refuse to testify falls behind the lawyer’s right to refuse to testify, the risk resulting from the reduced degree of protection of confidentiality is low and does not differ from the risk the legislature accepts in the context of those professions it has already granted the permission to establish a professional partnership.

(5) Nor does safeguarding the rights to protection against seizure under criminal procedural law, which also serves to protect the lawyer-client relationship, make it necessary to prohibit a professional partnership with physicians and pharmacists. The protection of these professional groups against seizure does not fall behind the protection lawyers can claim. Rather, § 97 of the Code of Criminal Procedure (Strafprozeßordnung – StPO) links the protection against consfiscation to the right to refuse to testify under § 53 sec. 1 sentence 1 nos. 1 to 3b StPO and is therefore applicable to lawyers as well as physicians and pharmacists.

(6) Investigation measures in the repressive area of law enforcement, measures of protection against risks of public safety as well as measures for the prevention of criminal offenses are subject to different protection levels, which may affect the clients’ interest in confidentiality. Pursuant to § 160a sec. 1 StPO, the prohibition to take or use evidence applies in favour of lawyers is an absolute prohibition while the prohibition that applies in favour of physicians and pharmacists is relative pursuant to § 160a sec. 2 in conjunction with § 53 sec. 1 no. 3 StPO. However, also the professions mentioned in § 59a sec. 1 BRAO and that are thus permitted to establish a professional partnership are only subject to such a relative protection; in this respect, the legislature accepts a limited weakening of the clients’ interest in confidentiality in favour of the freedom to practice an occupation.

bb) A prohibition of partnerships between lawyers and physicians or pharmacists might still be necessary to protect a lawyer’s independence. However, also in that regard the prohibition is at least not appropriate.

(1) When several professions work in a partnership, impairments of the professional independence of individual partners – be it because the other partners’ interests are considered in order to avoid or solve conflicts of interest or due to prevailing power structures – can never be ruled out completely. The legislature’s assumption that it is necessary to meet risks to the professional independence is therefore plausible and not objectionable.

(2) Compared to the combinations of professions permitted to establish a partnership according to § 59a BRAO, the inter-professional cooperation of lawyers with physicians and pharmacists does not entail an increased potential endangerment of the lawyers’ independence so that its prohibition does not prove to be appropriate. Although, unlike the professions permitted to establish a partnership, an inter-professional cooperation between lawyers, physicians and pharmacists does not offer advice on business or commercial law issues in the broadest sense, this does not constitute a plausible reason for an increased need of protection in favour of the lawyer’s independence. To the contrary, the completely different field of professional activity of physicians and pharmacists rather confirms that the latter will show more respect for the independence of their legal partner alone because of their professional distance to legal issues.

The form of organisation at issue here does not increasingly jeopardise the independence either. Practicing a profession in a professional partnership does not exempt the respective professional from his or her legal obligations regarding their profession (cf. § 6 sec. 1 of the Act on Partnership Corporations Partnerschaftsgesellschaftsgesetz – PartGG). Furthermore, the managerial authority of the individual partner cannot be restricted with regard to the practicing of his or her profession (cf. § 6 sec. 2 PartGG). In addition, the protection mechanisms in the already mentioned Federal Lawyers’ Rules of Professional Practice apply irrespective of the corporate structure.

cc) The objective to avoid conflicts of interests does not justify a prohibition of professional partnerships between lawyers and physicians or pharmacists either.

(1) In accordance with § 43a sec. 4 BRAO and the more detailed provisions of § 3 BORA, lawyers are prohibited to represent conflicting interests. Essential parts of this prohibition are secured under criminal law by § 356 StGB pursuant to which a violation of the lawyer-client relationship is punishable. The professional codes of conduct for physicians and pharmacists do not have corresponding provisions; furthermore, physicians and pharmacists cannot be offenders under § 356 StGB. To forgo comparable provisions appears reasonable since physicians and pharmacists normally do not enter into an adversary relationship with third parties when acting in the interest of their patients. However, not all professions listed in § 59a BRAO are required to represent the interests of one party only as stipulated in § 43a sec. 4 BRAO, § 3 BORA. Only patent lawyers and, within the very limited scope of § 392 of the Fiscal Code (Abgabenordnung – AO), also tax consultants, tax representatives, auditors and certified accountants may become criminally liable for violating the lawyer-client relationship. Generally, the legal partner must therefore be compelled, in accordance with § 30 sentence 1 BORA, to contractually commit the non-legal partners to comply with the lawyers’ rules of professional practice. In accordance with § 33 sec. 2 BORA, a lawyer must furthermore prevent, by measures that take effect throughout the partnership, that the prohibition to represent conflicting interests is disregarded.

(2) Within this narrow scope, when permitting professional partnerships under § 59a sec. 1 BRAO, also the legislature accepted that in inter-professional cooperations risks to the lawyer’s integrity cannot be ruled out completely. A partnership with physicians and pharmacists in comparison to one with professions permitted for partnership does not entail a specifically increased endangerment of the lawyer’s integrity. Thus, also against that background the specific prohibition to establish a partnership constitutes an inappropriate interference with their freedom to practice an occupation.

The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

Article 38 of the Basic Law protects the citizens with a right to elect the Bundestag from a loss of substance of their power to rule, which is fundamental to the structure of a constitutional state, by far-reaching or even comprehensive transfers of duties and powers of the Bundestag, above all to supranational institutions (BVerfGE 89, 155 <172>; 123, 267 <330>). The defensive dimension of Article 38.1 of the Basic Law takes effect in configurations in which the danger clearly exists that the competences of the present or future Bundestag will be eroded in a manner that legally or de facto makes parliamentary representation of the popular will, directed to the realisation of the political will of the citizens, impossible.

a)The decision on public revenue and public expenditure is a fundamental part of the ability of a constitutional state to democratically shape itself (see BVerfGE 123, 267 <359>). The German Bundestag must make decisions on revenue and expenditure with responsibility to the people. In this connection, the right to decide on the budget is a central element of the democratic development of informed opinion (see BVerfGE 70, 324 <355-356>; 79, 311 <329>).

b) As representatives of the people, the elected Members of the German Bundestag must retain control of fundamental budgetary decisions even in a system of intergovernmental administration.

a) The German Bundestag may not transfer its budgetary responsibility to other actors by means of imprecise budgetary authorisations. In particular it may not, even by statute, deliver itself up to any mechanisms with financial effect which – whether by reason of their overall conception or by reason of an overall evaluation of the individual measures – may result in incalculable burdens with budget relevance without prior mandatory consent.

b) No permanent mechanisms may be created under international treaties which are tantamount to accepting liability for decisions by free will of other states, above all if they entail consequences which are hard to calculate. Every large-scale measure of aid of the Federal Government taken in a spirit of solidarity and involving public expenditure on the international or European Union level must be specifically approved by the Bundestag.

c) In addition it must be ensured that there is sufficient parliamentary influence on the manner in which the funds made available are dealt with.

The provisions of the European treaties do not conflict with the understanding of national budget autonomy as an essential competence, which cannot be relinquished, of the parliaments of the Member States, which enjoy direct democratic legitimation, but instead they presuppose it. Strict compliance with it guarantees that the acts of the bodies of the European Union in and for Germany have sufficient democratic legitimation (BVerfGE 89, 155 <199 ff.>; 97, 350 <373>). The treaty conception of the monetary union as a stability community is the basis and subject of the German Consent Act (BVerfGE 89, 155 <205>).

With regard to the probability of having to pay out on guarantees, the legislature has a latitude of assessment which the Federal Constitutional Court must respect. The same applies to the assessment of the future soundness of the federal budget and the economic performance capacity of the Federal Republic of Germany.

FEDERAL CONSTITUTIONAL COURT

– 2 BvR 987/10 –
– 2 BvR 1485/10 –
– 2 BvR 1099/10 –

Pronounced
on 7 September 2011
Wolf
Amtsinspektorin
as Registrar
of the Court Registry

the monetary policy of the Federal Republic of Germany (aid for Greece) for violation of the fundamental rights of the complainants under Article 38.1, Article 14.1 and Article 2.1 of the Basic Law (Grundgesetz – GG)

– 2 BvR 987/10 –,

2) against a)

the Federal Republic of Germany because it agreed financial aid for the Hellenic Republic with the other members of the Eurogroup, grants financial aid for Greece, in particular by means of the Act on the assumption of guarantees to preserve the solvency of the Hellenic Republic necessary for financial stability within the Monetary Union (Gesetz zur Übernahme von Gewährleistungen zum Erhalt der für die Finanzstabilität in der Währungsunion erforderlichen Zahlungsfähigkeit der Hellenischen Republik, Währungsunion-Finanzstabilitätsgesetz – WFStG, Act on Financial Stability within the Monetary Union) of 7 May 2010 <Federal Law Gazette (Bundesgesetzblatt – BGBl.) I p. 537>), guarantees loans from the Kreditanstalt für Wiederaufbau to the Hellenic Republic and induces the International Monetary Fund to support Greece financially,

b)

agreements of the European Union, in particular of the Eurogroup, in which financial aid for the Hellenic Republic was agreed, inter alia by the Federal Republic of Germany,

c)

the decision of the representatives of the governments of the Member States of the European Union, in particular of the governments of the Eurogroup, meeting within the Council of the European Union, of 10 and 9 May 2010 (Council Document 9614/10) and the decision of the Council of the European Union (Economic and Financial Affairs, ECOFIN) of 9 May 2010 to create a European Financial Stabilisation Mechanism, including the Conclusions of this Council (Rat-Dok. (Council Document) SN 2564/1/10 REV 1),

the EFSF Framework Agreement between the Member States of the Eurogroup and the European Financial Stability Facility, EFSF, of 7 June 2010,

g)

the establishment of the special purpose vehicle (European Financial Stability Facility, EFSF, a société anonyme incorporated in Luxembourg, with its registered office in Luxembourg) to handle the rescue measures for ailing state budgets of members of the Eurogroup and Germany’s participation in this special purpose vehicle,

h)

the practice of the European Central Bank of buying up government bonds of the members of the Eurogroup and refinancing government bonds of every kind of the members of the Eurogroup,

– 2 BvR 1485/10 –,

II.

of Dr. Peter Gauweiler,

– authorised representatives:

Prof. Dr. Dietrich Murswiek,
Lindenaustraße 17, 79199 Kirchzarten,

Prof. Dr. Wolf-Rüdiger Bub,
Promenadeplatz 9, 80333 München –

against a)

the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism of 22 May 2010 (Federal Law Gazette I p. 627),

b)

the cooperation of the Federal Government in the intergovernmental decisions of the representatives of the governments of the euro area member states meeting within the Council of the European Union and of the representatives of the governments of the 27 EU Member States of 10 May 2010 (Council Document 9614/10) and in the decision of the Council of the EU of 9 May 2010 to create a European Stabilisation Mechanism (Conclusions of the Council [Economic and Financial Affairs] of 9 May 2010, Rat-Dok. SN 2564/1/10 REV 1 of 10 May 2010, p. 3) and in the decision of the Council on Council Regulation No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism (OJ L 118/1),

c)

the decisions of the Council of the European Union named under b) and the Council Regulation named under b),

d)

the purchase of government bonds of Greece and other euro area Member States by the European Central Bank,

e)

the cooperation of the Federal Government in the extra-treaty supplementation of the concept, laid down in the Treaty on the Functioning of the European Union, to ensure the price stability of the euro; this cooperation consists in the acts named under b) of cooperating in the decisions of the EU or of the Member States on the European Stabilisation Mechanism in conjunction with the cooperation in the decisions made within the European Union or between the euro area Member States on the Greek rescue package, the German part of which was implemented in the Act on the assumption of guarantees to preserve the solvency of the Hellenic Republic necessary for financial stability within the Monetary Union (Gesetz zur Übernahme von Gewährleistungen zum Erhalt der für die Finanzstabilität in der Währungsunion erforderlichen Zahlungsfähigkeit der Hellenischen Republik, Währungsunion-Finanzstabilitätsgesetz – WFStG, Act on Financial Stability within the Monetary Union) of 7 May 2010 (Federal Law Gazette I p. 537),

f)

the failure of the Commission and the Council of the European Union to use the measures provided in the Treaty on the Functioning of the European Union against the overindebtedness of euro area Member States and against its disregard of the budgetary discipline laid down in the Treaty and in this way to prevent the coming into existence of a state of emergency which is now used to justify the rescue packages which are incompatible with the Treaty (Greek rescue package and European Stabilisation Mechanism),

g)

the failure of the Federal Government to take measures against the speculators who in its representation speculate so aggressively against the euro or against particular euro area Member that the rescue packages are necessary to preserve the stability of the currency

– 2 BvR 1099/10 –

the Federal Constitutional Court – Second Senate – with the participation of

Judgment

holds as follows:

The proceedings are dealt with together for a joint decision.

The constitutional complaints are rejected as unfounded.

Grounds:

A.

1

The constitutional complaints challenge German and European legal instruments and further measures which are related to attempts to solve the current financial and sovereign debt crisis in the area of the European monetary union.

I.

2

1. The Treaty on European Union (Maastricht Treaty) of 7 February 1992 (OJ C 191/1; Federal Law Gazette II p. 1253) provided for a common monetary policy of the Member States, which was in stages to create a European monetary union and finally to communitarise the monetary policy in the hands of a European System of Central Banks (ESCB) (for an earlier decision on the following facts, see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 125, 385 ff.). In the third stage, the euro was introduced in 2002 as the single currency. In order to guarantee financial discipline to support the uniform monetary policy, at the same time the Stability and Growth Pact (Resolution of the European Council on the Stability and Growth Pact, Amsterdam, 17 June 1997, OJ C 236/1) entered into force; in the interest of the stability of the euro, this provides for new borrowing at a maximum rate of 3% of the gross domestic product (GDP) and a maximum level of indebtedness of 60% of the GDP.

3

2. The Hellenic Republic (hereinafter Greece) has since 2001 been a member of the group of 16 (since January 2011: 17) of the 27 Member States of the European Union (Council Decision 2000/427/EC of 19 June 2000 in accordance with Article 122(2) of the Treaty on the adoption by Greece of the single currency on 1 January 2001, OJ L 167/19) whose single currency is the euro (Eurogroup). The details of the size of the Greek budget deficit in the year 2009 had to be corrected from 5% to almost 13% of the GDP, for 2010, an increase of the national debt to 125% of the GDP and thus more than twice the reference level of 60% of the GDP was expected (see press release of the Economic and Financial Affairs Council <ECOFIN Council>, 16 February 2010).

4

3. Against this background, the European Council of the heads of state and government met in Brussels on 11 February 2010 in order to deliberate on possible measures relating to Greece. On this occasion, the European Council announced that it would take determined and coordinated action, if needed, to safeguard financial stability in the euro area as a whole (see Statement by the Heads of State or Government of the European Union, 11 February 2010). On 16 February 2010 the ECOFIN Council tightened the excessive deficit procedure against Greece which had been introduced in April 2009 and called for the deficit to be reduced by 4 percentage points within one year (from 12.7% in the year 2009 to 8.7% in the year 2010) and to further reduce it by 2012 to a maximum of 3% of the GDP (see press release of the ECOFIN Council, 16 February 2010). Following growing unrest on the financial markets, on 25 March 2010 the heads of state and government of the euro countries declared that they were prepared to support Greece in addition to financing by the International Monetary Fund (IMF) with their own bilateral loans (see Statement by the Heads of State and Government of the Euro Area, 25 March 2010). Evidently this statement also failed to convince the financial markets with lasting effect. After the Fitch Ratings Agency downgraded its rating for Greece to BBB- on 9 April 2010 and the risk surcharges on Greek government bonds rapidly reached record levels, on 11 April 2010 the Euro area finance ministers reached agreement on the structure of the aid for Greece, to be granted in the form of bilateral loans from states in the euro area, and on its extent and the interest rate. In order set incentives for Greece to return to market financing, the IMF’s pricing formula, with certain adjustments, was to be used as the reference rate to determine the conditions of the bilateral state loans. On 12 April 2010, the EU Commission, in consultation with the European Central Bank (ECB), entered into negotiations with the IMF and Greece, in which the conditions of the Greek rescue package were specified. The support was to be activated at the moment when it was actually needed, and needed above all to satisfy its liabilities on the bond markets. The participating states were then to decide on the disbursements (see Statement on the support to Greece by Euro area Member States, 11 April 2010).

5

4. On 23 April 2010, Greece applied for financial aid from the EU and the IMF (see Joint statement by European Commission, European Central Bank and Presidency of the Eurogroup on Greece, IP/10/446, 23 April 2010). Thereupon, on 2 May 2010, the states of the Eurogroup declared that they were ready, in the context of a three-year IMF programme with an estimated total financing requirement in the amount of 110 billion euros, to provide up to 80 billion euros as financial aid to Greece in the form of coordinated bilateral loans, up to 30 billion euros of which would be provided in the first year (see Statement by the Eurogroup, 2 May 2010). The shares of the individual states in the loans are based on the respective shares of the euro area Member States in the capital of the ECB. Germany’s share as one of the 15 states which formed the Eurogroup at the time (without Greece) was to be 27.92% (see draft bill of the CDU/CSU and FDP parliamentary groups, Bundestag printed paper (Bundestagsdrucksache , BTDrucks) 17/1544, p. 4). The German share of the credits was therefore, if all Eurogroup states (apart from Greece) participated, approximately 22.4 billion euros, up to 8.4 billion euros of which was payable in the first year. The IMF was to take a share of 30 billion euros (see draft bill of the CDU/CSU and FDP parliamentary groups, BTDrucks 17/1544, p. 1). The financial aid from the Eurogroup is provided subject to strict conditionality which was agreed between the IMF and the EU Commission (in consultation with the ECB) and Greece. The arrangements between the states of the Eurogroup with Greece and between themselves consist of two agreements. On the one hand there is the Loan Facility Agreement between the states of the euro area and Greece, which essentially establishes the loan conditions and requirements for granting the loan, and on the other hand the Intercreditor Agreement, an agreement between the Member States of the euro area which lays down the rights and duties of the Member States between themselves. Both agreements, with regard to Greece’s measures of financial and economic policy, relate to the Memorandum of Understanding entered into with Greece (see Greece: Memorandum of Understanding on Specific Economic Policy Conditionality, 2 May 2010), which lays down the conditions for granting loans and in particular makes the disbursement of the financial aid conditional on strict requirements with regard to budget consolidation. The disbursement of the individual tranches is therefore coupled to compliance with quantitative performance criteria. Thus, detailed savings goals are laid down for each quarter; these must be achieved by means of measures such as tax increases or the cancellation of bonuses in the civil service (see Greece: Memorandum of Understanding on Specific Economic Policy Conditionality, 2 May 2010, p. 1). The Intercreditor Agreement also provides for internal balancing of interest and disbursements for financially ailing lender countries. As a result, a lender which has higher refinancing costs than the borrower’s interest under the loan agreement may require that it is granted an adjustment of interest which is financed pro rata from the interest revenue of the other lenders. In addition, if it has higher refinancing costs than the borrower’s interest under the loan agreement, a lender may apply not to take part in the disbursement of the next tranche. The other lenders decide on this application by a two-thirds majority of their capital shares. As soon as this lender again has lower refinancing costs than the borrower’s interest, it is provided that its share of the loan should again be adjusted to the share provided in the loan agreement. No lender is responsible for the commitments of another lender.

6

5. In order to take the necessary measures on a national level, on 7 May 2010 the German Bundestag passed the challenged Act on the assumption of guarantees to preserve the solvency of the Hellenic Republic necessary for financial stability within the Monetary Union (Act on Financial Stability within the Monetary Union – WFStG, Federal Law Gazette I p. 537). The provisions of the Act on Financial Stability within the Monetary Union are as follows:

7

§ 1 – Guarantee authorisation

8

(1) The Federal Ministry of Finance is authorised to give guarantees up to the total amount of 22.4 billion euros to the Hellenic Republic; these are necessary as emergency measures to preserve the solvency of the Hellenic Republic in order to ensure financial stability in the monetary union. The guarantee serves to safeguard loans of the Kreditanstalt für Wiederaufbau to the Hellenic Republic, which are to be disbursed together with the loans of the other Member States of the European Union whose currency is the euro and of the International Monetary Fund. It is based on the measures agreed between the International Monetary Fund, the European Commission on behalf of the Member States of the European Union and the Hellenic Republic, with the cooperation of the European Central Bank. The loans from the Kreditanstalt für Wiederaufbau are to be disbursed in the first year up to the amount of 8.4 billion euros.

9

(2) A guarantee is to be applied against the maximum amount thus authorised in the amount in which the Federal Government can be called upon under the guarantee. Interest and costs are not to be charged on the amount authorised.

10

(3) Before guarantees are given under subsection 1, the German Bundestag ‘s budget committee must be informed, unless for compelling reasons an exception is advisable. In addition, the German Bundestag ‘s budget committee is to be informed quarterly on the guarantees given and their correct use.

11

§ 2 – Entry into force

12

This Act shall enter into force on the day after it is promulgated.

13

6. The share of the aid measures assumed by Germany will be lent by the Kreditanstalt für Wiederaufbau (KfW), which requires a Federal Government guarantee for this. § 1.1 of the Act on Financial Stability within the Monetary Union authorises the Federal Ministry of Finance to give guarantees of this nature, which secure the granting of the guarantee by the KfW.

14

7. On the same day, 7 May 2010, the heads of state and government of the Eurogroup met again in Brussels and inter alia stated that they were in favour of strengthening economic governance in the euro area and regulating the financial markets more intensively and combating speculation (for an earlier decision on the following facts, see BVerfGE 126, 158 <160 ff.>). They reaffirmed their determination to exploit all means to preserve the stability of the euro area. For this purpose they agreed inter alia that the EU Commission should propose a European stabilisation mechanism to preserve the stability of the financial markets in Europe (euro rescue package). Thereupon, on 9 May 2010, the ECOFIN Council passed a resolution to create a European stabilisation mechanism, which consists of two parts: the European Financial Stabilisation Mechanism (EFSM), based on an EU regulation, on the one hand and the European Financial Stability Facility (EFSF), a special purpose vehicle based on an inter-state agreement between the Member States of the Eurogroup to grant loans and credit lines, on the other hand. These instruments are intended to give financial assistance to Member States which are in difficulties caused by exceptional occurrences beyond their control (see the “Agreement on Conditions” on the “central structural elements of the EFSF”). The ECB also agreed to be involved in the new approach by resolving on a “securities markets programme”. Inter alia , the ECB Governing Council in this connection authorised the national central banks of the Eurosystem to purchase on the secondary market debt instruments issued by central governments or public entities of the Member States (OJ L 124/8).

15

8. Council Regulation No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism (OJ L 118/1) is based on Article 122.2 of the Treaty on the Functioning of the European Union (TFEU). This provides that where a Member State is in difficulties or is seriously threatened with severe difficulties caused by exceptional occurrences beyond its control, it may be granted European Union financial assistance. The Council is of the opinion that the exceptional situation consists in the fact that the intensification of the global financial crisis has led to a grave deterioration for more than one Member State of the Eurogroup, which exceeds what can be explained by fundamental economic data. The European Financial Stabilisation Mechanism is to remain in effect for as long as is necessary to preserve the stability of the financial markets and is to have a total financial volume of up to 60 billion euros, which makes it necessary for the EU to borrow. The Regulation lays down the details of the conditions and procedures under which a Member State may be granted financial assistance by the EU. The decision on the grant of financial assistance is made by the Council on a proposal of the EU Commission, by a qualified majority.

16

9. In addition to the introduction of the EFSM, the heads of state and government of the Eurogroup agreed to support each other financially through a special purpose vehicle, the EFSF. A special purpose vehicle is a legal person or an entity equivalent to a legal person which is usually founded for a quite specific purpose and is dissolved after this purpose has been achieved. It was resolved that the participating Member States, paying due regard to their constitutional provisions, guarantee the special purpose vehicle in proportion to their share of the paid-in capital of the ECB (see Decision of the Representatives of the Governments of the Euro Area Member States Meeting within the Council of the European Union, of 9 May 2010, Council Document 9614/10). The EU Commission may, through the EFSF, be tasked by the Member States of the Eurogroup (see Decision of the Representatives of the Governments of the 27 EU Member States of 9 May 2010, Council Document 9614/10).

17

10. With regard to this special purpose vehicle, which at this date had not yet been founded, first of all framework conditions were agreed (“Agreement on Conditions”): The shareholders are all Member States of the Eurogroup; every Member State of the Eurogroup delegates one director to the board of the company, and in addition the EU Commission delegates an observer. The special purpose vehicle is to be founded under Luxembourg law. Its purpose is to issue bonds and to grant loans and credit lines to cover the financing requirements, subject to conditions, of Member States of the Eurogroup who are in difficulties. The guarantees for the special purpose vehicle in the amount of 440 billion euros will be shared among the Member States of the Eurogroup in proportion to their share of the capital of the ECB; the liabilities of the Member States under the guarantee are limited to their share plus 20% for each bond issue. The increase of up to 20% results from the fact that not all Eurogroup Member States will be involved in all bond issues. The decisions will be made unanimously; the life of the special purpose vehicle is limited to three years from its foundation, irrespective of the date of maturity of loans granted or bonds issued by the special purpose vehicle and of guarantees given by Eurogroup Member States.

18

11. In addition, a framework agreement is to be entered into between the Eurogroup participating states and the proposed special purpose vehicle; this will govern the details of the issue of bonds on the capital market by the special purpose vehicle, of the declaration of guarantee of the Eurogroup states and of the terms of the loan extension (see EFSF Framework Agreement, draft of 20 May 2010). On the basis of Germany’s share in the ECB capital, the German share of the guarantee volume was to be 123 billion euros; in cases of unforeseen and absolute need, it was anticipated that the amount might be exceeded by 20% (see draft bill of the CDU/CSU and FDP parliamentary groups, BTDrucks 17/1685, p. 1). The total volume of the stabilisation instruments in the amount of 750 billion euros is calculated on the basis of the volume of the EFSM in the amount of 60 billion euros, the volume of the EFSF in the amount of 440 billion euros and the (expected) participation of the IMF in the amount of half of the sums named, that is a further 250 billion euros (see Conclusions of the ECOFIN Council of 9 May 2010, Rat-Dok. SN 2564/1/10 REV 1).

19

12. In order to create the conditions on a national level to give financial support through the special purpose vehicle (EFSF), on 21 May 2010 the German Bundestag passed the challenged Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism (hereinafter: Euro Stabilisation Mechanism Act, Federal Law Gazette I p. 627). After the Bundesrat had resolved on the same day not to refer the bill to the Mediation Committee, the Act was promulgated on 22 May 2010. The provisions of the Euro Stabilisation Mechanism Act are as follows:

20

§ 1

21

Guarantee authorisation

22

(1) The Federal Ministry of Finance is authorised to give guarantees up to a total amount of 123 billion euros for loans which are raised by a special purpose vehicle founded or commissioned by the euro area Member States to finance emergency measures to preserve the solvency of a euro area Member State, provided these emergency measures for the preservation of the solvency of the affected Member State are necessary to ensure financial stability in the monetary union. The condition is that the affected Member State has agreed an economic and financial policy programme with the International Monetary Fund and the European Commission with the cooperation of the European Central Bank and that this is approved by mutual agreement of the euro area Member States. Prior to this, the risk to the solvency of a euro area Member State must be established by mutual agreement of the euro area Member States, without the participation of the Member State involved, together with the International Monetary Fund and the European Central Bank. Guarantees under sentence 1 may only be given by 30 June 2013 at the latest.

23

(2) The giving of guarantees under subsection 1 is subject to the condition that the euro area Member, without the participation of the Member State involved and with the cooperation of the European Central Bank and in consultation with the International Monetary Fund, mutually agree that emergency measures under the Council Regulation to create a European financial stabilisation mechanism are not or not in full sufficient to avert the risk to the solvency of the euro area Member State in question.

24

(3) A guarantee is to be applied against the maximum amount thus authorised in the amount in which the Federal Government can be called upon under the guarantee. Interest and costs are not to be charged on the amount authorised.

25

(4) Before giving the guarantees under subsection 1, the Federal Government will endeavour to reach agreement with the German Bundestag budget committee. The budget committee has the right to submit an opinion. If for compelling reasons a guarantee has to be given before agreement has been reached, the budget committee must be subsequently informed without delay; the absolute necessity of giving the guarantee before agreement is reached must be justified in detail. In addition, the German Bundestag ‘s budget committee is to be informed quarterly on the guarantees given and their correct use.

26

(5) Before the guarantees are given by the Federal Ministry of Finance, the agreement on the special purpose vehicle must be submitted to the German Bundestag ‘s budget committee.

27

(6) The scope of the guarantees under subsection 1 may, if the requirements of § 37.1 sentence 2 of the Federal Budget Code are satisfied, with the consent of the German Bundestag ‘s budget committee be exceeded by up to 20 per cent of the sum stated in subsection 1.

28

§ 2

29

Entry into force

30

This Act shall enter into force on the day after it is promulgated.

31

13. On 7 June 2010, the Grand Duchy of Luxembourg founded the special purpose vehicle, initially alone (see European Financial Stability Facility, Société Anonyme, 7 June 2010). On the same day, the finance ministers of the Eurogroup and a representative of the special purpose vehicle accepted the Framework Agreement (see EFSF Framework Agreement, Execution Version of 7 June 2010). Article 13.8 of this Framework Agreement gives the other Member States the right to assume their shares of the special purpose vehicle.

II.

32

In their constitutional complaints, the complainants challenge German and European legal instruments and further measures which are related to attempts to solve the current financial and sovereign debt crisis in the area of the European monetary union. All complainants assert that there is a violation of their fundamental rights under Article 38.1, Article 14.1 and Article 2.1 of the Basic Law.

33

1. The first complainants are of the opinion that Article 38.1 sentence 2 of the Basic Law gives every citizen a right that the principles of the structure of the state in the Basic Law are at least in essence safeguarded. They submit that fundamental principles of the Basic Law have been disregarded, in particular the principle of the social welfare state, and that the principles of the constitutional rules governing public finances have been disregarded and in particular there has been a violation of borrowing limits (Article 115 of the Basic Law). Germany has largely abandoned its budgetary sovereignty. They state that the measures are contrary to convergence and thus to stability, and that they also violate the fundamental right to property of Article 14.1 of the Basic Law, and they submit as follows:

34

a) aa) Article 38 of the Basic Law grants an individual right that every instance of European integration policy must be supported by sufficiently specific decisions of the German Bundestag and of the Bundesrat . Legal instruments which depart from the concept of the European Union monetary union would be ineffective in Germany, for if they took effect, this would lack parliamentary accountability and would therefore violate Article 38.1 of the Basic Law. The German Bundestag has assumed responsibility for the monetary union, but only subject to particular basic conditions to ensure the stability of the European Union currency. The stability criteria are binding not only as the limit of the sovereign powers transferred, because the Bundestag and the Bundesrat were not prepared or entitled to be accountable for a development of the monetary union independent of these stability criteria, but also because a stability community strictly bound by the convergence criteria is a subject agreed on by European Union treaty. Parliament bears responsibility for and legitimises European Union policy only within the limits of the sovereign powers transferred. Just as the policy of a monetary union cannot take effect in Germany without a German Consent Act, such a policy can also not assert itself under the Basic Law contrary to the Consent Act, whose basis is in the treaty. It would also violate the right equivalent to a fundamental right under Article 38.1 of the Basic Law.

35

bb) If there is a departure from the stability principle of the Maastricht Treaty, the German Bundestag and the Bundesrat are not responsible or accountable for this policy, and this violates the citizen’s constitutional rights. Measures which are resolved upon by the European Council and the Council of the Finance Ministers and implemented by the Act on Financial Stability within the Monetary Union disregard the limits of the powers of the European Union and can have no effect in Germany. The measures do not only violate the convergence principle of financial stability law in the narrow sense, but also ignore the requirement of convergence in currency law, that is, the budgetary independence of the members of the monetary union. Decisions of the German Bundestag passed by a simple majority cannot democratically assume responsibility for the aid measures of the European Union and Germany. Whether the monetary union following the stability concept of the Treaty may be expected to result in the European currency being stable depends on whether convergence is realised in such a way that the monetary union can be a community which guarantees stability and in particular monetary stability in the long term (BVerfGE 89, 155 <204>).

36

b) In the commitment to grant financial aid to other members of the Eurogroup in order to avert their budgetary hardships, Germany has largely abandoned its budgetary sovereignty, which is an essential part of economic sovereignty. In this way, Parliament’s right to decide on the budget, which defines democratic parliamentarianism (Article 110.2 sentence 1 of the Basic Law), is restricted in a way which surrenders existential statehood in an anti-democratic manner. Limits to permissible loan guarantees can be found in the fundamental budgetary principle of Article 110.1 sentence 2 of the Basic Law. It is impossible for Germany to satisfy its commitments under the guarantees without borrowing.

37

c) The measures are contrary to convergence and thus to stability, and they also violate the fundamental right to property of Article 14.1 of the Basic Law. This fundamental right guarantees the “citizen’s fundamental right to price stability”. It also receives its substance from the principle of the social welfare state. This guarantee of property is violated by a policy of money instability. Together with the value of money, inflation materially reduces monetary claims. As a result of inflation, monetary wealth loses value to a greater or lesser extent. It is true that the guarantee of property does not generally guarantee the value of assets, but it does afford protection against a state policy which encourages inflation. It also follows from Article 14.1 of the Basic Law that the state has a duty to protect the stability of value of property. The policy of the European Union and of Germany is contrary to convergence and thus to stability and it gives rise to fears of a present and immediate loss of value of the complainants’ personal assets. The legal protection of property calls for inflation to be averted in an early stage. For if one waits until inflation has developed, the damage has already occurred. The constitutional complaint proceedings must examine whether the monetary policy of the European Union and of Germany creates a risk of inflation.

38

d) The federal bodies have no powers to undertake acts which are contrary to the Basic Law; at all events, all powers end where they violate the core of constitutional identity, which under Article 79.3 of the Basic Law is not at the disposal of the policies of the federal bodies. The core of constitutional identity also restricts the powers of the European Union bodies. Both the European Union policy and the national policy of the euro rescue package violate not only the principle of conferral, but in the form of inflation policy also violate the core of Germany’s constitutional identity, in particular the principle of the social welfare state. They even hold the danger of creating a currency reform which is contrary to the social welfare state. The European Union is attempting to develop Article 122.2 TFEU into a form of federal emergency constitution. This is an arrogation of power which has the quality of a coup d’état. The European Financial Stabilisation Mechanism creates the “financial union”, which is at the same time a “social union”. It creates the “transfer union” and the liability community. Financial aid for ailing state budgets is a form of financial compensation which departs from the concept of the monetary union.

39

2. The second complainant also submits that his fundamental rights and rights equivalent to fundamental rights under Article 38.1, Article 14.1 and Article 2.1 of the Basic Law have been violated. He states that the euro stabilisation mechanism is incompatible with the Treaty on the Functioning of the European Union and has the effect of altering the Treaty (a). Both these elements are significant with regard to more than one violation of a fundamental right ((b) and (c)). He submits as follows:

40

a) The euro stabilisation mechanism – in the same way as the earlier aid to Greece – violates the bailout prohibition of Article 125.1 TFEU, which rules out European Union liability for commitments of the Member States and liability of the Member States for commitments of other Member States. It is the purpose of this provision to ensure comprehensive legal responsibility of the Member States for their own public-revenue conduct. Only if it is clear to every Member State that neither the European Union nor other Member States are liable for or guarantee that state’s own commitments and therefore there is a risk of state insolvency in certain circumstances is there sufficient incentive to satisfy the requirements of stability in the long term and not to engage in an irresponsible debt policy at the cost of the others – who admittedly have no legal obligation, but might see themselves, as a result of the pressure of economic circumstances, de facto forced to be responsible for the commitments of the Member State with unsound economic activity – and to enjoy prosperity on credit in the hope that ultimately the others will pay for this.

41

A justification of this violation by a state of emergency under Article 122.2 TFEU is out of the question. In particular, the overindebtedness of Greece and other states is not an event comparable to a natural disaster, but the result of a financial policy for which, according to the Treaty, the states in question are solely responsible. In the case of overindebtedness, state bankruptcy is an economic consequence of the state’s own conduct, for which the state in question must take responsibility under the meaning and purpose of Article 125 TFEU. If the impending insolvency of a Member State were to be understood as an exceptional occurrence within the meaning of Article 122.2 TFEU, scarcely an area of application for the bailout prohibition would remain.

42

The contravention of the bailout prohibition by the euro stabilisation mechanism is not an isolated infringement of the Treaty; on the contrary, the concept of the stability union provided for by the Treaty is permanently destroyed, and replaced by the completely different concept of a liability and transfer union. In addition, the euro stabilisation mechanism as such represents the institutionalisation of ongoing failure to fulfil Treaty obligations. In the Maastricht Treaty, the Federal Republic of Germany only consented to monetary union subject to the proviso that the provisions guaranteeing stability should be in force and be strictly applied. Every time it disregards these provisions, the European Union leaves the Treaty foundation of monetary policy and oversteps the scope of competence defined in the Member States’ Acts to ratify the Treaty. Politically, there may be differing opinions as to whether such a turning away from the previous conception is desirable or not. But legally, at all events, such a fundamental change of design is possible only by a formal amendment of the Treaty. The participation of the Federal Government and the Bundestag in the de facto alteration, sanctioned by custom, of the Treaty on the Functioning of the European Union is incompatible with the principle of democracy.

43

b) In its Lisbon judgment, the Federal Constitutional Court recognised a comprehensive right of the individual to participate in the democratic legitimation of state authority – a “right to democracy” – which is not restricted to legitimation in connection with the transfer of sovereign powers. In substance, admittedly, this right equivalent to a fundamental right does not entail a comprehensive review of the lawfulness of the whole of the state’s activity, but it does entail a “review of democracy”. This right of the individual under Article 38. 1 of the Basic Law has been violated in several ways by the challenged acts and omissions.

44

aa) Ultra vires acts of the European Union bodies contravene the principle of democracy and infringe the complainant’s right equivalent to a fundamental right under Article 38.1 of the Basic Law because they involve the exercise of sovereignty in Germany which is not democratically legitimised. From Article 38.1 of the Basic Law there follows in general the right of every citizen that state authority and European sovereign power is democratically legitimised, unless the constitution itself – within the limits of Article 79.3 of the Basic Law – permits restrictions or modifications of the democratic principle of legitimation. The challenged acts and omissions of the European Union bodies, as ultra vires acts, contravene Article 38.1 of the Basic Law. This applies to the decision of the Council of 9 May 2010 to introduce a euro stabilisation mechanism (violation of the bailout prohibition of Article 125.1 TFEU), to Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism (violation of the bailout prohibition of Article 125.1 TFEU), to the purchase of government bonds of Greece and of other euro area Member States by the European Central Bank (violation of Article 123.1 TFEU) and to the coordination of the rescue packages, that is, of the aid to Greece and the euro stabilisation mechanism, by the Council and the EU Commission (violation of the bailout prohibition of Article 125.1 TFEU). These are manifest and serious cases of overstepping of competence within the meaning of the Federal Constitutional Court’s Honeywell case-law.

45

Unlike in the case of the review against fundamental rights, the Federal Constitutional Court has not retracted its authority for ultra vires review of European Union acts. The focus is not on a constant, regular overstepping of European Union competences; instead, the Federal Constitutional Court reviews every individual overstepping of the limited individual competences. Since European Union acts which are not covered by the limited individual competences can have no legal effect in the Member States, they are subject in full to review by the Federal Constitutional Court. Consequently, the complainant can also challenge the fact that the European Union acts violate Article 14.1 or Article 2.1 of the Basic Law; in this case, the Solange II case-law is not pertinent. From the perspective of German constitutional law, ultra vires acts of the European Union bodies are to be disregarded by German state authority because they are not covered by the German Consent Act ratifying the Treaty and thus are not based on an effective transfer of sovereign powers. Every overstepping of their competence by European Union bodies also severs the democratic legitimation connection which is based on the Consent Act.

46

bb) Article 38.1 of the Basic Law has also been violated by the Federal Government’s cooperation in the ultra vires acts of the European Union bodies.

47

cc) The same applies to the acts of the Federal Government, which in cooperation with the European Union bodies and with the governments of the other Member States led to a fundamental change of the stability conception of the European monetary union. Not only the Federal Government was involved in this de facto alteration of the Treaty outside the legal Treaty amendment procedure, but also the Bundestag and the Bundesrat , by passing the Act on Financial Stability within the Monetary Union of 7 May 2010 and the Euro Stabilisation Mechanism Act of 22 May 2010. Admittedly, as a rule measures for which Parliament as legislature gives authorisation by statute do not lack democratic legitimation. But it must be noted that the Basic Law makes differing requirements of the democratic legitimation conveyed by the Act of parliament. An amendment of primary European Union law, except where it is a case of a simplified treaty amendment procedure provided for in EU law, requires an international-law treaty and a Consent Act ratifying the treaty within the meaning of Article 23.1 of the Basic Law to be entered into. Treaty amendments without such a ratifying Act do not satisfy the constitutional requirements for democratic legitimation.

48

dd) In addition, the complainant finds his rights under Article 38.1 of the Basic Law violated in that the de facto abolition of the bailout prohibition encroaches upon the people’s constituent power. A liability community and a European centralisation of budget policy may not even be introduced by a Treaty amendment unless the Member States are given other competences by the European Union by way of compensation. For with this impetus to centralisation the limit of what the Federal Constitutional Court, in the Lisbon decision, regarded as constitutional by way of transfer of sovereign powers would be clearly exceeded. In this decision, the Court emphasised the importance of the budgetary sovereignty of the national parliaments as the most important element of state sovereignty.

49

ee) There is also a violation of the principle of democracy guaranteed by Article 38.1 of the Basic Law because the guarantee authorisation and the institutional embodiment of the special purpose vehicle in the Euro Stabilisation Mechanism Act is too imprecise and possibilities of parliamentary monitoring and influence were lacking when the Act was implemented. What standards are to be imposed before guarantees are given on the economic and financial policy programme of the Member State which is to benefit and in what way the performance of this programme in practice is monitored and safeguarded cannot be understood from the challenged statute. It is true that the Federal Government has a right of veto, because the programme has to be approved by mutual agreement of the Member States. However, this veto position is relativised in view of the immense political pressure. In addition, the institutional structure of this special purpose vehicle is not defined in the Act. Nor did the delegates have access to articles of association of the special purpose vehicle when the Act was passed. The “Agreement on Conditions”, which sketches the “central structural elements of the EFSF” in a few words, was by no means sufficient to enable the Bundestag to make an accountable decision.

50

In addition, under § 1.4 of the Euro Stabilisation Mechanism Act, the Federal Government is merely obliged to attempt to reach agreement with the Bundestag budget committee before giving guarantees. This is not enough, since in the case of conflict the obligation to attempt to reach agreement leaves the decision on a financial volume of half of the federal budget to the Federal Government.

51

ff) With regard to the German Bundestag ‘s budget responsibility, the second complainant finds a violation of Article 38.1 of the Basic Law in particular in the fact that responsibility for the guarantee authorisation given in § 1 of the Euro Stabilisation Mechanism Act in the amount of 147.6 billion euros (123 billion euros plus 20%) exceeds what is possible in a parliamentary democracy. If one adds to this the guarantee authorisation in favour of Greece in the amount of 22.4 billion euros agreed in the Act on Financial Stability within the Monetary Union, this is a total amount which is much larger than the largest federal budget item and which greatly exceeds half of the federal budget. Admittedly, it is not likely that the Federal Government will have to assume liability for all guarantees in full, but it is also not unrealistic to prepare for this possibility. The Bundestag renounces its budget responsibility and its responsibility for the public interest if it ties itself down in this volume in advance for future budget years. With good reason, the Basic Law provides that decisions on revenue and expenditure are to be made in annual budgets or in budgets relating to years, which are adopted as Budget Acts. Admittedly, Article 115. 1 of the Basic Law permits the Bundestag to authorise by statute guarantees of various kinds which may result in expenditure in future financial years. But this presupposes that these are obligations which remain on the scale of customary individual budget items. If, however, half the federal budget is potentially spent in advance in this way, this is a quantum leap. In drafting Article 115 of the Basic Law, the legislature creating the constitution was not thinking of such exorbitant orders of magnitude. It contradicts the principle of parliamentary budget responsibility that the whole or – as in the present case – half of the budget is disposed of in advance and thus room to manoeuvre in order to perform the state’s many duties is abandoned.

52

gg) Moreover, Article 38.1 of the Basic Law is also violated by the fact that the Decision of the Representatives of the Governments of the Euro Area Member States Meeting within the Council of the European Union of 9 May 2010 is a treaty under international law and under Article 59.2 in conjunction with Article 115.1 of the Basic Law it required the consent of Parliament in the form of a Consent Act. In the absence of a Consent Act, the democratic legitimation necessary under Article 59.2 of the Basic Law is lacking.

53

hh) Finally, the second complainant finds a violation of Article 38.1 of the Basic Law in the fact that Parliament was compelled by the Federal Government to pass the Act on Financial Stability within the Monetary Union and the Euro Stabilisation Mechanism Act, in that the Federal Government claimed that there was a state of emergency with threatening catastrophic consequences or actually caused this state of emergency by a number of omissions. A characteristic of parliamentary democracy is that Parliament debates on various possible decisions and the majority decides in favour of one of the alternatives. If parliament is forced to decide in favour of one alternative because otherwise an absolutely intolerable evil threatens, a democratic choice between alternatives on the basis of competing political conceptions is impossible. However, it is debatable whether there really is only one way out of the Greek crisis and the “euro crisis”. Respected economists think that a far better solution could be achieved if the creditors take a “haircut”. But if there are realistic alternatives, it is undemocratic to put Parliament under such pressure.

54

c) In addition to Article 38.1 of the Basic Law, Article 14.1 of the Basic Law is also violated by the challenged acts and omissions. They lead to the collapse of the legal stability structure of the currency system. Admittedly, in its decision on the introduction of the euro, the Federal Constitutional Court stated clearly that by law the currency policy must orient itself towards the objective of price stability, which follows from Article 14.1 in conjunction with Article 88 of the Basic Law, but that there is no individual right to demand that this obligation is fulfilled. This is also correct, because and to the extent that the law of economic, financial, currency and social policy allows tolerance for structuring and prognosis. But where there are strict legal commitments with regard to the structuring of the economic regulatory framework for the development of monetary value, no reason is apparent to restrict the individual right under Article 14.1 of the Basic Law. This is precisely the nature of the legal position in the present case. For the policy violates Article 125.1 and Article 123.1 TFEU and thus fails to observe the limits established by treaty of provisions determining the content and limits of property. It would be a one-sided and impermissibly restrictive point of view if one were always to understand provisions determining the content and limits of property only as restrictions of the rights of owners. They are at the same time constitutive elements of the owner’s rights. Since the legal scope of owners’ rights follows from the totality of the statutory provisions determining the content and limits of property, the individual also has a claim for state authority to observe the provisions determining the content and limits of property.

III.

55

The German Bundestag (1) and the Federal Government (2) submitted written opinions on the constitutional complaints.

56

1. The German Bundestag is of the opinion that the constitutional complaints are inadmissible (a) and unfounded (b) and submitted as follows:

57

a) The complainants disregard the limits of constitutional complaint proceedings and also of the judicial decisions of the Federal Constitutional Court. The constitutional complaint, which is designed to give an individual recourse to justice, is completely pushed into the background and the complainants conduct themselves as if they were champions of the public. The decisions made by the Council of the European Union and the acts and omissions of the ECB and the EU Commission are outside the scope of a constitutional complaint under Article 93.1 no. 4a of the Basic Law and § 90 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). Nor do the Solange II case-law of the Federal Constitutional Court and the statements on European ultra vires acts made in the Lisbon judgment lead to a different result. Independently of this, there is no entitlement to file a specific constitutional complaint, for the complainants are exposed to mere reflex effects, and this is not sufficient to assume a direct effect on them.

58

aa) The possibility of a violation of Article 14 of the Basic Law has not been shown. It is true that specific property rights are protected, and consequently so is property in the form of money and the basic possibility of being able to exchange money for material assets. However, Article 14 of the Basic Law contains no guarantee of value; the exchange value of property rights is not covered by the guarantee of property, provided that the possibility of exchange is not completely ruled out. The area of protection of Article 14.1 of the Basic Law does not include monetary stability, and therefore there is no fundamental right to a stable currency. Furthermore, the challenged measures serve to ensure the monetary stability of the euro and for this reason too they do not contravene Article 14 of the Basic Law.

59

bb) An infringement of Article 2.1 of the Basic Law is out of the question. Only if an infringement of Article 14.1 of the Basic Law were to be assumed would there at the same time be an infringement of Article 2.1 of the Basic Law, but by reason of its subsidiarity this would then be overridden as a fall-back fundamental right.

60

cc) Where the argument is based on objective constitutional law (the principle of the social welfare state), this is outside the area of application of a constitutional complaint. The principle of the social welfare state alone does not give rise to any individual rights. The principle of the social welfare state includes the requirement for the state to create the minimum requirements for an existence inline with human dignity. This does not include the guarantee of a stable currency, because the principle of the social welfare state does not relate to the general economic conditions of environment and existence.

61

dd) Nor has the possibility of a violation of Article 38 of the Basic Law been shown. State power and the influence on the exercise thereof are legitimised by election, and in the area of application of Article 23 of the Basic Law, Article 38.1 of the Basic Law precludes emptying this of meaning by relocating duties and powers of the Bundestag in such a way that the principle of democracy, insofar as Article 79.3 in conjunction with Article 20.1 and 20.2 of the Basic Law declares it to be inviolable, is violated (BVerfGE 89, 155 <171>). This guarantee is not relevant, because duties and powers of the German Bundestag are not relocated. The Federal Republic of Germany does not abandon its statehood. The challenged statutes are statements of the German legislature and as such an expression of continuing statehood. In the present context, Article 38.1 of the Basic Law gives no protection against the democratically legitimised legislature.

62

b) The constitutional complaints are also unfounded. Fundamental rights have not been violated. Nor does an argument which places an alleged contravention of provisions of European primary law in centre stage carry weight. Insofar as the constitutional complaints assert that there have been violations of law and place these violations in the context of ultra vires review, they overlook the fact that the concept of ultra vires acts does not imply a general review, encroaching upon areas of discretion, by Member State courts of the lawfulness of all European physical acts or legal instruments.

63

aa) Apart from the fact that violations of the European treaties by the federal legislature cannot be challenged by way of a constitutional complaint, the accusations are also substantively incorrect with regard to European Union acts.

64

(1) In Article 122 TFEU, there was a legal basis for European Union acts. Under Article 122.2 TFEU, the Council may under certain conditions grant a Member State financial assistance from the European Union if this Member State, by reason of natural disasters or exceptional occurrences beyond its control, is in difficulties or is seriously threatened with severe difficulties. It is true that there is no natural disaster in the present case. However, the financial crisis and the developments on the financial markets are exceptional occurrences within the meaning of Article 122.2 TFEU. They are also beyond the control of the Member States considered, that is Greece, Portugal, Spain, Italy and Ireland. The difficulties within the meaning of Article 122. 2 TFEU need not in their entirety arise without fault. Even if Greece and other euro area Member States had themselves actuated their strained budget situations, it would only have been the financial crisis, contagious tendencies entailed by it and the developments on the financial markets which would have led to difficulties or to the threat of severe difficulties. These difficulties within the meaning of Article 122.2 TFEU consist in a substantial deterioration of loan conditions of some euro area Member States, which could have resulted in these Member States being insolvent, and in the danger that these tensions would spread from the government bonds market to other markets and would adversely affect the functioning of the international financial markets.

65

(2) The purchase of government bonds of Greece and of other euro area Member States by the European Central Bank is not a violation of Article 123 TFEU. This provision only prohibits the ECB from directly purchasing debt instruments of public-sector bodies and institutions. Consequently, only the purchase of government bonds direct from state issuers, that is, the euro area Member States, is prohibited. The direct purchase of government bonds by the ECB from the secondary market is not prohibited.

66

(3) There is no violation of Article 125 TFEU and the bailout prohibition contained therein. There is no aspiration to achieve a completely different conception of the monetary union, away from the stability community and towards the liability and transfer community. Article 125 TFEU is open to interpretation to the extent that it may simply contain a “prohibition of a commitment to give financial aid”, with the result that voluntary financial aid is not affected. Under Article 125 TFEU, neither the European Union nor individual Member States are liable for the obligations of sovereign agencies of other Member States and they do not take responsibility for such obligations. In this way the bailout prohibition prevents creditors of Member States or these Member States themselves from being able automatically to call upon the European Union or other Member States as if they were guarantors of the debts of these Member States. However, this does not mean that Article 125 TFEU contains a general prohibition of financial assistance for Member States. There is no obligation to give assistance, but this is not forbidden. The aid from the Member States does not contravene the bailout prohibition for another reason too. Under the wording of Article 125.1 TFEU – “… A Member State shall not be liable for or assume the commitments …” – a Member State is only forbidden to enter into the debt relationship between another Member State and its creditor, with the result that the bailout prohibition specifically does not contain a general prohibition of voluntary assistance between the Member States. For this voluntary assistance creates a new, independent commitment and is therefore not conceptually an entry into an old commitment.

67

In addition, a further reason why the financial assistance of the European Union does not violate Article 125 TFEU is that Article 122.2 TFEU authorises the European Union to grant financial assistance and at the same time can be regarded as the ground of justification for deviating from the prohibition of Article 125 TFEU. Even if one were to infer from the provision a prohibition of assistance, it would still be the case that when choosing between the loss of currency stability and giving assistance, in the last resort European Union law could not stand in the way of giving assistance. On the contrary, it would have to be objectively interpreted following the purposive approach. In the political process, reference has repeatedly been made to the last-resort nature of the present measure. It appears absurd to hold fast to a narrowly interpreted bailout clause if assistance is the last means to preserve the stability of the currency, which is precisely what a narrowly interpreted bailout clause is intended to achieve.

68

bb) Finally, in all considerations of lawfulness it must be taken into account that this is an area in which considerable latitude must be given to economic and political assessment and prognosis. The Bundestag and the Federal Government are responsible for the stability of the currency. The Federal Constitutional Court cannot release the politically responsible actors of this responsibility by interpretation of constitutional law. If parts of the euro rescue package were invalidated, this would lead to considerable uncertainty on the financial markets and might completely call into question the stabilisation of the financial markets now achieved. Doubt could be cast on Germany’s willingness and ability to defend the European integration achieved and the joint currency. Trade-offs on the stabilisation package would directly entail substantial risks to the functioning of the financial system in the euro area. As a consequence, a substantial devaluation of the euro could be expected. The probable effects would be a new acute financial and economic crisis in the euro area and beyond it, high welfare loss in Germany and Europe and further political dangers and distortions, which would extend far beyond the economic area.

69

2. The Federal Government also regards the constitutional complaints as inadmissible (a), but at all events as unfounded (b). It submitted as follows:

70

a) With regard to the secondary-law measures and other practices to be regarded as equivalent to these of the bodies of the European Union, the constitutional complaints are at minimum inadmissible because the conditions under which such acts may be the subject of a constitutional complaint are not satisfied. Nor is it sufficiently shown that the protection of fundamental rights regarded as essential in each case is not generally guaranteed on the European Union level. In addition, the complainants are not affected by the challenged measures in an individual manner. The constitutional complaint proceedings give them no right to challenge provisions which could have only indirect effects on them as part of the general public. In other respects too, there is no possibility that a fundamental right or a right equivalent to a fundamental right has been violated.

71

aa) Article 38.1 of the Basic Law only protects against an erosion of the Bundestag ‘s competences by the transfer of sovereign powers or by ultra vires acts of the European Union. On the basis of Article 38.1 of the Basic Law, losses of substance of democratic freedom of action may be challenged; this also includes encroachments upon the principles laid down in Article 79.3 of the Basic Law as the identity of the constitution. But such a case is not applicable in the present matter. Nor can the alleged violations of Articles 123 and 125 TFEU be seen as ultra vires acts in the sense of manifestly wrongful recourse to competences not transferred and therefore reserved to the Member States. Consequently, the challenged European Union measures are also incapable of being violations of Article 38.1 of the Basic Law. Insofar as the second complainant asserts that there has been a violation of Article 38.1 of the Basic Law because there is no statute under Article 59.2 of the Basic Law, it is plain that no violation of this right equivalent to a fundamental right is possible. This follows from the mere fact that an alleged violation of Article 59.2 of the Basic Law cannot be challenged by way of a constitutional complaint.

72

bb) Nor is there a violation of the fundamental right to property under Article 14.1 of the Basic Law. The “civil right to price stability” alleged by the first complainants does not exist. Even if a state duty under objective law to protect monetary value resulted from the principle of the social welfare state or other provisions of the Basic Law, this does not entail a fundamental right of the individual. The second complainant may not rely on the argument that violations of strict legal commitments in shaping economic framework conditions for the development of monetary value could be challenged by constitutional complaint with reference to Article 14.1 of the Basic Law. It is true that the fundamental right to property protects concrete legal interests with the value of assets and thus also property in the form of money, but it does not protect monetary value. The area of protection of Article 14.1 of the Basic Law does not include the purchasing power of money. The subject of protection of the fundamental right is essentially only the substance of specific legal positions which have the value of assets and their use. With regard to money too, only its existence and the possibility of using it as a means of payment are guaranteed, but not its exchange value. In addition, the challenged measures – even if a fundamental right to monetary stability existed – could not violate such a fundamental right, because they would serve to guarantee the euro as currency and thus also the monetary stability of the euro.

73

b) At all events, the constitutional complaints are unfounded. The practices of German constitutional bodies and bodies of the European Union that are challenged do not adversely affect the fundamental rights or rights equivalent to fundamental rights of the complainants (aa). Even if other German constitutional law (bb) and the law of the European Union (cc) could be matters open to review by a constitutional complaint, there would be no violation of prior-ranking law.

74

aa) (1) Article 38.1 of the Basic Law has not been violated, for there has been no transfer of sovereign powers on the basis of Article 23.1 of the Basic Law which could have resulted in an erosion of the Bundestag ‘s competences. The German Bundestag ‘s scope of action has in no way been restricted by law. In the Act on Financial Stability within the Monetary Union and the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism, the Bundestag exercised its competences. The challenged acts of cooperation of the Federal Government in the circle of the representatives of the governments of the Member States meeting within the Council of the European Union and in the passing of decisions in the Council and these decisions themselves also do not violate the right equivalent to a fundamental right under Article 38 of the Basic Law. Political agreement on bilateral measures was made expressly subject to the states’ domestic constitutional provisions. The same applies to the decision of the Council of the European Union (Economic and Financial Affairs) of 9 May 2010. The decision of the Council to introduce a European financial stabilisation mechanism, by which it passed Regulation (EU) no. 407/2010, was made on the basis of Article 122.2 TFEU and is not a measure extending competence which could erode the rights of the Bundestag . The acts of cooperation of the current German representative from time to time therefore cannot have been violations of Article 38 of the Basic Law.

75

(2) Article 14.1 of the Basic Law has also not been violated; its area of protection has not even been touched on. The measures decided on serve to protect financial stability in the euro area, the euro currency as such and thus also monetary stability. For this reason they cannot violate the fundamental right to property. Even if one presumes that the challenged measures carry dangers for the stability of the euro, consideration should be given to the legislature’s economic and political latitude for assessment and prognosis, which should at all events be recognised.

76

bb) (1) The measures of assistance in the form of loan guarantees to threatened Member States do not violate Article 115 of the Basic Law, nor do they contravene other constitutional law relating to the budget. The principle of budgetary equilibrium (Article 110.1 sentence 2 of the Basic Law) requires only a formal balancing of revenue and expenditure, but it forbids neither guarantees nor borrowing. Under Article 115.1 sentence 1 of the Basic Law, guarantees, like borrowing, require authorisation by federal statute in an amount which is either determined or determinable. The legislature exercised the responsibility to safeguard Parliament’s right to decide on the budget which was assigned it by the Basic Law. In addition, the budget committee was given extensive rights of participation and monitoring under § 1.4 and §1.5 of the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism which exceeded the mere right of information which is otherwise customary when guarantees are given (see § 3.8 and § 3.9 of the Budget Act 2010). Article 115 of the Basic Law provides for no upper limit in figures for guarantees. There is no basis in the Basic Law for limiting the amount of a guarantee to the magnitude of “customary” individual budget items.

77

(2) Nor do the measures disregard the core of constitutional identity in the form of the principle of the social welfare state. It is true that constitutional identity, which is laid down in Article 79.3 of the Basic Law, includes the core of the principle of the social welfare state. However, monetary stability is not one of the elements which constitute this core based on the concept of the social welfare state.

78

(3) There is no violation of Article 59.2 of the Basic Law. Even violations of Article 59.2 of the Basic Law are not permitted to be challenged by a constitutional complaint, and there is no violation either with regard to the matters agreed by the government representatives meeting within the Council or with regard to the EFSF Framework Agreement. This follows firstly from the mere fact that these are not agreements under international law. Secondly, even if one were to assume that they were agreements under international law, the requirements in Article 59.2 of the Basic Law which make a Consent Act necessary would not be satisfied.

79

cc) Nor can Article 38. 1 of the Basic Law have been violated under the aspect that the challenged measures contravene European Union law or lead to an alteration or even destruction of the concept of the monetary union as a stability community. On the contrary, it is precisely their objective to preserve the monetary union as a stability community.

80

(1) Regulation (EU) No 407/2010 is permissibly based on Article 122.2 TFEU. Under this provision, the Council may under certain conditions grant a Member State financial assistance from the European Union if this Member State, by reason of natural disasters or exceptional occurrences beyond its control, is in difficulties or is seriously threatened with severe difficulties. The global financial crisis and the negative developments on the financial markets, which cannot be explained solely by the basic economic data, constitute such exceptional occurrences. Article 122.2 TFEU authorises only emergency measures. This proves that the Financial Stabilisation Mechanism is only an emergency measure, not a permanent institution which could result in the “liability and transfer community” feared by the complainants. An argument against assuming a permanent institution is the general restriction to measures subject to a time-limit and the obligation of review, which is intended to ensure that the Regulation applies only as long as the exceptional occurrences which threaten the financial stability of the European Union as a whole continue to exist (Article 9 of Regulation <EU> no. 407/2010).

81

(2) Article 125 TFEU does not conflict with the grant of aid through the Financial Stabilisation Mechanism, for Article 122.2 and Article 125 TFEU are part of a uniform system of provisions introduced at the same time. It is true that Article 125 TFEU is intended to preserve the budgetary discipline of the Member States by obliging them to take out loans on market conditions. For this reason, a narrow interpretation of Article 125 TFEU may suggest forgoing measures of assistance even where there are imminent dangers to financial stability. However, if the Member States had forgone the measures challenged by the constitutional complaint, serious consequences would have had to be feared, not only for the euro area. Every mechanical application of Article 125 TFEU would have considerably endangered the economy and also the currency in the euro area and beyond. The provision is not tailored to the case of an already existing acute danger to the financial stability of the euro system. The Member States were permitted to act to avert this danger because in Article 125 TFEU there is a gap relating to the case of burdens on Member States in the euro area resulting from a financial crisis, at all events insofar as there is an imminent danger to the whole economic and monetary union. This gap, in the sense of the lack of a necessary restriction, can be closed if it is interpreted purposively with the result that Article 125 TFEU does not apply if the monetary union would otherwise be endangered. In the decision on the emergency measures, in the opinion of the Federal Government the federal legislature has latitude of decision and judgment. At all events, the fact that the legislature, on the basis of consultations in the circle of the finance ministers and of opinions of the European Central Bank, decided in favour of this protective mechanism in order to prevent the feared far-reaching market reactions does not overstep the latitude for judgment to which it is entitled. In this connection it is essential that the measures are merely situation-related emergency reactions, which are therefore subject to a time-limit.

82

(3) In other respects too, the Federal Government did not cooperate in an extra-treaty supplementation of the concept, laid down in the Treaty on the Functioning of the European Union, to ensure the price stability of the euro. The challenged measures were not a de facto amendment of the European Union treaties. The European Union does not arrogate to itself any sovereign powers not yet transferred to it which erode the competences of the German Bundestag and thus may violate Article 38 of the Basic Law.

83

The bilateral aid and the German emergency measures provided by the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism are not elements of an overall strategy aimed at creating a liability and transfer community. Nor do they establish an arrangement for permanent financial compensation. The fact that these are emergency measures and not a long-term financial transfer is shown on the one hand by the strict requirements laid down in the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism, and on the other hand by the time-limit both for the Act and for the measures of the special purpose vehicle which coordinates the national aid (Article 2.5.b, Article 10, Article 11 of the EFSF Framework Agreement). If the existing extraordinary situation should take a positive course with the result that the emergency measures are no longer needed, there would be nothing to prevent them being terminated prematurely. For this very reason, Regulation (EU) No 407/2010 establishing a European financial stabilisation mechanism, which governs the European Union measures preceding the bilateral aid, includes a commitment to a half-yearly review of the need for its continuance. The Federal Government will continue its commitment to the preservation of price stability in the monetary union and also to an improvement of the associated procedures to protect the stability of the euro as a currency. In this connection, the Council, not least as the result of a German initiative, affirmed its complete determination to ensure the sustainability of public finances in all Member States and to accelerate plans for budget consolidation and structural reforms. The Council also affirmed its determination to bring forward reforms with great urgency to reinforce the monetary union framework in order to ensure the sustainability of public finances. The Federal Government supports these measures because they serve the stability of the euro. It would oppose endeavours to develop the stabilisation mechanism into a permanent institution in the form of a transfer union, which would be inconsistent with the concept of the monetary union as a stability community, and would not permit de facto amendments to the treaty.

84

(4) Finally, the purchase of government bonds by the ECB does not contravene European Union law, for Article 123 TFEU prohibits only the direct acquisition of debt instruments of state issuers, but not purchase on the secondary market.

IV.

85

As expert third parties (§ 27a of the Federal Constitutional Court Act), the German Bundesbank (1) and the European Central Bank (2) submitted opinions.

86

1. In the opinion of the German Bundesbank, the decisions of May 2010 are defensible, all in all, from an economic point of view (a). However, they do put quite considerable strain on the foundations of the monetary union (b). Additional reform steps are necessary to safeguard the monetary union as a stability community in future in order to be prepared for financial crises of Member States too (c). The Bundesbank submits as follows:

87

a) The latest developments have revealed fundamental weaknesses in the current financial policy provisions and have shown the economic consequences where competitive positions in the monetary union diverge in the long term. In view of the risks to the stability of the European monetary union, the decisions made by the European Union finance ministers in May 2010 are defensible, all in all, from an economic point of view. It is true that they do not remove the deeper causes of the intensification of the crisis, that is, the dangerous situation of state finances and the past undesirable macroeconomic developments in some states of the monetary union which entail a continuing high need for capital imports. Countering these undesirable developments calls instead for comprehensive financial and economic corrections, the implementation of which takes time and which often only reach their full effect in the medium term. But in view of the situation of the strongly networked financial sector in the euro area, which as a whole is still fragile, a correction at short notice was not possible in May 2010 without the risk of massive economic distortions throughout the euro area. In order to gain the necessary time and against the background of the dangerous situation, the creation of a possibility of support subject to strict conditions and a time-limit is a suitable means.

88

b) However, the decisions put quite considerable strain on the foundations of monetary union. Against the background of the gaps and weaknesses in the existing set of provisions, which became plain to see at the latest in the course of the crisis, it is now important to create a framework for the monetary union which in future will better guarantee policies encouraging stability and in particular solid public finances in the Member States. The current financial provisions of the monetary union have to date not been adequate to prevent the escalation of the situation in May 2010, and they have also been additionally weakened by the rescue measures. It is therefore now necessary to combine these rescue measures, as intended, with a toughening of the fiscal rules and an improvement of the statistical foundations. The Bundesbank has repeatedly pointed out that the criterion of indebtedness has particular importance for a stability-oriented monetary policy. It should be given more weight in future. For indebtedness levels of over 60% it should be laid down how quickly they should be reduced and what sanctions will apply if this is not achieved. The deficit criterion could be strengthened if extraordinary provisions which were relaxed in the reform of the Stability and Growth Pact were once again drafted more narrowly and above all greater pressure were created in the precautionary part of the Pact if the conditions were not complied with. Altogether, there is a need for a quicker reaction to undesirable developments and thus an acceleration of the current procedure. The central concern is to improve the inadequate implementation of the provisions. Thus the imposition of sanctions should be less subject to the political negotiation process and more strongly comply with the rules. A commitment to firmer entrenchment of the European fiscal provisions – and in particular of the medium-term budget objectives – in national budget law, as for example in the German brake on debt, would also be effective. In the case of manifest serious undesirable developments, strengthened macroeconomic monitoring on the European level is also necessary. However, in this connection both the independence of monetary policy within the existing framework and the subsidiarity principle must also be taken into account; a basic tendency to centralisation of economic policy and to fine-tuning of the economic process does not make sense.

89

c) The future safeguarding of the monetary union as a stability community demands additional reform steps over and above the toughening of the existing set of provisions in order to be prepared for a financial crisis of Member States which nevertheless occurs. In this connection, a variety of instruments have been suggested for discussion. Thus, for example, the introduction of a state insolvency code has been suggested as an essential element of a reformed set of framework provisions. Especially against the background of the latest experience, such a procedure would take account of the no-bailout principle. Thus, the creditors of state debt instruments would also be called upon to solve the debt crisis. They would then have a greater incentive even in advance to demand interest rates appropriate to the risk, and they would have a tendency also to allow for undesirable developments which had not yet become directly observable in fiscal policy figures, for example non-sustainable economic structures or future burdens on government budgets. Using the disciplining function of the financial markets in this way would have the advantage that interest in sound public finances in individual Member States would at least not solely depend on the political decision process on the European level, which in the past has often been shown to be insufficient. Such proposals or further-reaching proposals to supplement the existing framework must be examined if the existing sanction mechanism proves to be inadequate. A critical view must be taken if the present European Financial Stability Facility, which is subject to a time-limit, were to become a long-term support facility. From the view point of the advocates of such a proposal, this would take better account of the fact that the interconnection of the capital markets has greatly increased since the Maastricht Treaty was passed and thus the effects of economic contagion which the payment default of one state in the monetary union has on the other Member States have increased. But at the same time such a course of action would additionally weaken the personal responsibility of the national financial policies, and it would be a further step in the direction of a liability and transfer community. The risk of default on government bonds of individual Member States would be distributed among all states in the monetary union and thus the disciplining effect of the financial markets would be largely removed. The probability that with such an unsound financial policy the creditors of the state in question would call for adequate risk premiums would be reduced and thus the incentive for a cautious budgetary policy would be weakened. In addition, the intended participation of the International Monetary Fund in the present financing facility, which is subject to a time-limit, plays an important role in the credibility of the consolidation packages from the point of view of the markets, and if there were a long-term European stabilisation facility this participation would probably be extremely difficult to ensure. As part of the collective monetary policy, the euro system is committed to the objective of guaranteeing stable prices in the monetary union. In a monetary union based on stability, however, it is a central duty of financial policy to ensure that sound state finances and a suitable institutional framework appropriately support monetary policy. For the long-term stability of the monetary union, the crucial factor will be not allowing the window of opportunity for reforms to strengthen the financial framework and the capacity for growth in the Member States to pass unused.

90

1. The European Central Bank points out that the current financial situation and the economic and currency decisions based on it are linked to the global economic and financial crisis. It submits as follows: The crisis began with turbulences on the financial markets in August 2007 and drastically intensified in September 2008 when the collapse of Lehman Brothers led to the financial markets virtually drying up in the industrial countries; this had considerable effects on the real economy in the countries affected. The turbulences on the financial markets and the intensification of the crisis required decisive and energetic measures by the political decision-makers, including the ECB, at that time, in order to guarantee price stability in the euro area. In the weeks and months following this, there was again a drastic and abrupt aggravation of the situation on the financial markets. The epicentre of the tensions was in the European bond markets, in particular in the government bonds markets. These extremely serious tensions on the financial markets affected the whole euro area including the interbank market, the stock market and the foreign exchange market, and it threatened to spread to the global financial markets. The development on the government bonds markets quickly affected the money markets and resulted in a marked increase of uncertainty in connection with the risk of counterparty default. Quotations which reflect this risk of default rose to twelve-month maximums. There was also a liquidity squeeze on the interbank markets. The liquidity position in the area of unsecured loans deteriorated, not only for term money, but also for overnight money. On the European overnight money market, liquidity fell to the lowest level since the beginning of the economic and monetary union in January 1999. The global economic and financial crisis led to unprecedented challenges for political decision-makers, in particular in the industrial countries, which were most severely affected. The latest developments with regard to the increasingly more difficult situation on the government bond markets had the potential to considerably increase the total risk to the financial stability of the euro area, and it should be noted that financial stability is a basic condition of the guarantee of price stability.

V.

91

Applications by the complainants for the issue of temporary injunctions were rejected by the Federal Constitutional Court in orders of 7 May and 9 June 2010 (BVerfGE 125, 385; 126, 158).

VI.

92

On 5 July 2011, the Federal Constitutional Court held an oral hearing in which the parties explained and expanded upon their legal viewpoints.

B.

93

The constitutional complaints against the Act on Financial Stability within the Monetary Union and against the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism are admissible insofar as they challenge an injury to the permanent budgetary autonomy of the German Bundestag on the basis of Article 38.1 sentence 1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law (I). Apart from this, the constitutional complaints are inadmissible (II).

I.

94

1. The Act on Financial Stability within the Monetary Union and the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism may be the subject matter of a constitutional complaint in constitutional complaint proceedings as measures by German state authority.

95

2. The complainants submit with sufficient substantiation that they themselves may be presently and directly affected by violation of a fundamental right or right equivalent to a fundamental right which is challengeable under Article 93.1 no. 4a of the Basic Law and § 90.1 of the Federal Constitutional Court Act (§ 23.1 sentence 2, § 92 of the Federal Constitutional Court Act).

96

a) Insofar as the complainants assert a violation of their right equivalent to a fundamental right under Article 38.1 sentence 1 of the Basic Law by the Act on Financial Stability within the Monetary Union and the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism, the entitlement to file a constitutional complaint depends on the contents of the individual challenges (see BVerfGE 123, 267 <329>). The constitutional complaints are admissible with regard to the alleged erosion of the budgetary autonomy of the German Bundestag .

97

aa) In their submission that the sustained (long-term) budgetary autonomy of the German Bundestag is violated in the sense of the erosion of its competences, the complainants set out with sufficient substantiation the possibility of a violation of their right equivalent to a fundamental right under Article 38.1 sentence 1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law.

98

(1) Article 38.1 and 38.2 of the Basic Law guarantees the individual right to take part, in compliance with the constitutional election principles, in the election of the Members of the German Bundestag (see BVerfGE 47, 253 <269>; 89, 155 <171>; 123, 267 <330>). Here, the act of election does not consist solely in a formal legitimation of state power on the federal level under Article 20.1 and 20.2 of the Basic Law. The right to vote also comprises the fundamental democratic content of the right to vote, that is, the guarantee of effective popular government. Article 38 of the Basic Law protects the citizens with a right to elect the Bundestag from a loss of substance of their power to rule, which is fundamental to the structure of a constitutional state, by far-reaching or even comprehensive transfers of duties and powers of the Bundestag , above all to supranational institutions (BVerfGE 89, 155 <172>; 123, 267 <330>). The same applies, at all events, to comparable commitments entered into by treaty, which are connected institutionally to the supranational European Union, if the result of this is that the people’s democratic self-government is permanently restricted in such a way that central political decisions can no longer be made independently.

99

(2) This substantive extent of protection of Article 38 of the Basic Law does not in general give rise to any right of the citizens to have the lawfulness of democratic majority decisions reviewed by the Federal Constitutional Court. The right to vote does not serve to monitor the content of democratic processes, but is intended to facilitate them. Article 38.1 of the Basic Law, as the fundamental right to participate in the democratic self-government of the people, therefore in principle grants no entitlement to file a specific constitutional complaint against decisions of Parliament, in particular enactments.

100

(a) Since the judgment on the Maastricht Treaty on European Union, the Federal Constitutional Court has recognised an exception to this principle if, by reason of relocations of duties and powers of the Bundestag under international agreements, an erosion of Parliament’s political legislative possibilities guaranteed by the constitutional system of competences is to be feared (see BVerfGE 89, 155 <172>). This view holds that the principle of representative rule of the people protected by the right to vote may be violated if the Bundestag ‘s rights are substantially curtailed and thus a loss of substance occurs of the democratic freedom of action for the constitutional body which has directly come into being according to the principles of free and equal election (see BVerfGE 123, 267 <341>). Such a possibility of challenge is restricted to structural changes in the organisation of government such as may occur when sovereign powers are transferred to the European Union.

101

This review of state power accessed by every citizen’s constitutional complaint was already criticised in connection with the Maastricht judgment (Tomuschat, Europäische Grundrechte-Zeitschrift – EuGRZ 1993, p. 489 <491>; Bryde, Das Maastricht-Urteil des Bundesverfassungsgerichts – Konsequenzen für die weitere Entwicklung der europäischen Integration , 1993, p. 4; König, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht – ZaöRV 54 <1994>, p. 17 <27-28>; Bieber, Neue Justiz – NJ 47 <1993>, p. 241 <242>; Gassner, Der Staat 34 <1995>, p. 429 <439-440>; Cremer, NJ 49 1<1995>, pp. 5 ff.). Similar opinions were also expressed following the Lisbon judgment (Schönberger, Der Staat 48 <2009>, pp. 535 <539 ff.>; Nettesheim, Neue Juristische Wochenschrift – NJW 2009, p. 2867 <2869>; Pache, EuGRZ 2009, p. 285 <287-288>; Terhechte, Europäische Zeitschrift für Wirtschaftsrecht – EuZW 2009, p. 724 <725-726). However, the Senate adheres to its opinion. The citizen’s claim to democracy, ultimately rooted in human dignity (see BVerfGE 123, 267 <341>) would lapse if Parliament abandoned core elements of political self-determination and thus permanently deprived citizens of their democratic possibilities of influence. The Basic Law has provided, in Article 79.3 and Article 20.1 and 20.2 of the Basic Law, that the connection between the right to vote and state power is inviolable (see BVerfGE 89, 155 <182>; 123, 267 <330>). In the revised version of Article 23 of the Basic Law, the constitution-amending legislature made it clear that the mandate to develop the European Union is subject to permanent compliance with particular constitutional structural requirements (Article 23.1 sentence 1 of the Basic Law) and that in this connection an absolute limit is created by Article 79.3 of the Basic Law to protect the identity of the constitution (Article 23.1 sentence 3 of the Basic Law), which at all events in this context requires less than cases of imminent totalitarian seizure of power for it to be exceeded. Citizens must be able to defend themselves in a constitutional court against a relinquishment of competences which is incompatible with Article 79.3 of the Basic Law. The Basic Law provides for no more extensive right of challenge.

102

The defensive dimension of Article 38.1 of the Basic Law therefore takes effect in configurations in which the danger clearly exists that the competences of the present or future Bundestag will be eroded in a manner that legally or de facto makes parliamentary representation of the popular will, directed to the realisation of the political will of the citizens, impossible. The entitlement to make an application is therefore only granted if there is a substantiated submission that the right to vote may be eroded.

103

(b) The entitlement to file a specific constitutional complaint under Article 38.1 of the Basic Law may also exist if, and this is the only matter at issue in this case, guarantee authorisations under Article 115.1 of the Basic Law which implement matters decided in international agreements may by their nature and extent result in massive adverse effects on budgetary autonomy.

104

The fundamental decisions on public revenue and public expenditure are part of the core of parliamentary rights in democracy. Article 38.1 sentence 1 of the Basic Law excludes the possibility of depleting the legitimation of state authority and the influence on the exercise of that authority provided by the election by fettering the budget legislature to such an extent that the principle of democracy is violated (see BVerfGE 89, 155 <172>; 123, 267 <330> in each case on the relocation of duties and powers of the Bundestag to the European level). By putting the elements into specific terms and objectively tightening the rules for borrowing by Federal and Länder governments (in particular Article 109.3 and 109.5, Article 109a, Article 115 of the Basic Law new, Article 143d.1 of the Basic Law, Federal Law Gazette I 2009 p. 2248), the constitution-amending legislature made it clear that a constitutional commitment of the parliaments and thus a palpable restriction of their power to act is necessary in order to preserve the democratic freedom of action for the body politic in the long term. The act of voting would be devalued if the German Bundestag no longer disposed of these means of organisation to fulfil state functions resulting in expenditure and to exercise its powers, when its power to act is legitimised by the voters to use these very means of organisation.

105

Whereas conventional guarantee authorisations within the meaning of Article 115.1 of the Basic Law, as the discussion in the oral hearing showed, entail no extraordinary risks to budgetary autonomy and therefore the Basic Law contains no restrictions in this connection, guarantee authorisations to implement obligations which the Federal Republic of Germany undertakes as part of international agreements to preserve the liquidity of states in the monetary union certainly have the potential to restrict the Bundestag ‘s possibilities of political organisation to a constitutionally impermissible extent. Such a case would have to be feared, for example, if the Federal Government, without the requirement of the Bundestag ‘s consent, were permitted to give guarantees to a substantial extent which contribute to the direct or indirect communitarisation of state debts, that is, guarantees where only the conduct of other states decided when the guarantee would be called upon.

106

(3) In the circumstances of the present case, the complainants’ submissions satisfy the strict requirements for showing the violation of a fundamental right.

107

The present case concerns statutory authorisations for the giving of a guarantee with effect outside the state and the creation of an international mechanism intended to be temporary to preserve the liquidity of states in the monetary union. With regard to the German Bundestag ‘s right to decide on the budget affected by this, this is a case of the creation of obligations whose effects may be equivalent to a transfer of sovereign powers if the Bundestag is no longer able to dispose of its budget on its own responsibility. Since it has not yet been clarified in the case-law of the Federal Constitutional Court subject to what requirements in such a combination of circumstances the right under Article 38.1, Article 20.1 and 20.2, and Article 79.3 of the Basic Law may be violated, in this respect it is sufficient to submit that the challenged statutes are merely first steps towards a historically unprecedented automatic liability which is becoming established and altogether is constantly increasing and which does indeed correspond to the shaping or transformation of transferred sovereign powers within the meaning of Article 23.1 of the Basic Law and at all events is designed to be such a shaping or transformation.

108

bb) Insofar as the second complainant submits on the basis of Article 38.1 sentence 1 of the Basic Law that there is also an extra-treaty supplementation of the concept provided in the Treaty on the Functioning of the European Union to ensure the price stability of the euro, his constitutional complaint is inadmissible.

109

It is true that the principle of the Basic Law’s openness towards European law (see BVerfGE 123, 267 <354>; 126, 286 <303>) and the constitutionally protected viability of the European Union’s legal order (see BVerfGE 37, 271 <284>; 73, 339 <387>; 102, 147 <162 ff.>; 123, 267 <399>) subject German agencies to an obligation when they act functionally for the European Union within its institutional organisation, and at the same time constitutionally bind them to observe European Union law. But this is not relevant in the present case. The second complainant has not submitted with sufficient substantiation to what extent domestic requirements of the particular responsibility of German legislative bodies in the European integration process (responsibility for integration) might not be complied with. It may therefore remain undecided subject to what requirements constitutional complaints against extra-treaty supplementation of primary European Union law may be based on Article 38.1 sentence 1 of the Basic Law (see BVerfGE 123, 267 <351>; with reference to the amendment of treaty law by European Union bodies without ratification procedures). In particular, no decision is necessary as to when measures of German state power which have an extra-treaty effect on primary European Union law or which substantively or institutionally supplement it may be challenged in constitutional complaint proceedings in the same way as a Consent Act to agreements under international law. It may also remain undecided whether contraventions of the principle of democracy – at all events in conjunction with the principle of the rule of law – are in principle also challengeable in this way. For the second complainant has at all events not shown a specific context which suggests an extra-treaty supplementation of primary European Union law in such a way that a violation of the right to vote seems possible. In particular, he has not submitted with sufficient substantiation that an extra-treaty supplementation of primary European Union law might be connected to the Act on Financial Stability within the Monetary Union or the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism.

110

b) The constitutional complaints against the Act on Financial Stability within the Monetary Union and against the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism are also inadmissible insofar as the complainants submit that there is a violation of their fundamental right under Article 14.1 of the Basic Law.

111

aa) Whether, and if so in what more detailed circumstances, the purchasing power of money is included in the area of protection of the fundamental right to property of Article 14.1 of the Basic Law (see BVerfGE 97, 350 <370-371>) need not be decided here. The same applies with regard to the constitutional protection against inflationary effects which are clearly induced by the state and which may possibly be desired in economic policy (see Herrmann, Währungshoheit, Währungsverfassung und subjektive Rechte , 2010, p. 338 ff.). In particular, it is not necessary to answer the question as to how far the provision on the organisation of government of Article 88 sentence 2 of the Basic Law, as a result of the statutory requirement of independence and as a result of the commitment to price stability, also serves the goal of the individual protection of property (see BVerfGE 89, 155 <174>; 97, 350 <376>).

112

bb) At all events, the complainants neither show in a substantiated manner an inflationary effect in the sense of such an intentional state economic policy, nor do they submit sufficient facts to show that the purchasing power of the euro is substantially objectively impaired by the challenged measures. The fact that the challenged authorisations to give guarantees – with regard to their volume – entail considerable challenges for the budgetary policy of the Federal Republic of Germany does not alter the fact that the sums which have been involved to date do not as yet display such massive effects on monetary stability that a justiciable violation of the guarantee of property is possible, and in particular the submissions of the complainants do not support this. It is not in general the task of the Federal Constitutional Court in the course of constitutional complaint proceedings to review economic and financial policy measures to identify negative effects on monetary stability. Such a form of review only comes into consideration in marginal cases – which have not sufficiently been shown in the present case – where there is a manifest decrease of monetary value as a result of state measures. With regard to the support measures challenged in the present case too, the result is the general conclusion that monetary value is in a particular way related to and dependent on the Community (see BVerfGE 97, 350 <371>).

II.

113

With regard to the other subject matters of the constitutional complaints, the constitutional complaints are inadmissible in their entirety.

114

1. Insofar as the constitutional complaints are directed against the Federal Government’s cooperation in the intergovernmental Decisions of the Representatives of the Governments of the Euro Area Member States Meeting within the Council of the European Union and of the Representatives of the Governments of the 27 EU Member States of 10 May 2010 (Council Document 9614/10) and against the cooperation of the Federal Government in the decision of the Council of the European Union of 9 May 2010 to create a European stabilisation mechanism (Conclusions of the Council [Economic and Financial Affairs] of 9 May 2010, Rat-Dok. SN 2564/1/10 REV 1 of 10 May 2010, p. 3), and against the cooperation of the Federal Government in the decision of the Council on the Council Regulation establishing a European financial stabilisation mechanism of 10 May 2010 (Council Document 9606/10), the complainants are not directly burdened (see BVerfG, Order of the Second Chamber of the Second Senate of 12 May 1989 – 2 BvQ 3/89 –, NJW 1990, p. 974; BVerfG, Order of the Third Chamber of the Second Senate of 9 July 1992 – 2 BvR 1096/92 , Neue Zeitschrift für Verwaltungsrecht – NVwZ 1993, p. 883; Chamber Decisions of the Federal Constitutional Court (Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK) 2, 75 <76>).

115

The various acts of cooperation of the Federal Government are not acts of sovereign power against the complainants which are challengeable by constitutional complaint. In this respect, despite the differences between the law of international agreements and supranational law, the same applies as to acts of cooperation of German bodies in agreements under international law (see BVerfGE 77, 170 <209-210>; BVerfG, Order of the Second Chamber of the Second Senate of 12 May 1989 – 2 BvQ 3/89 –, ibid.).

116

2. The submissions of the complainants that their fundamental rights are directly violated by the intergovernmental decisions of the representatives of the governments of the euro area Member States meeting within the Council of the European Union and of the representatives of the governments of the 27 EU Member States of 10 May 2010 (Council Document 9614/10), the decision of the Council of the European Union of 9 May 2010 to create a European stabilisation mechanism (Conclusions of the Council [Economic and Financial Affairs] of 9 May 2010, Rat-Dok. SN 2564/1/10 REV 1 of 10 May 2010, p. 3), the decision of the Council on the Council Regulation establishing a European Financial Stabilisation Mechanism of 10 May 2010 (Council Document 9606/10) and the purchase of government bonds of Greece and other euro area Member States by the European Central Bank are inadmissible because they are not based on qualified subject matters of constitutional complaints. The challenged acts – notwithstanding other possibilities of review with regard to the right to apply them in Germany (see BVerfGE 89, 155 <175>; 126, 286 <302 ff.>) – are not sovereign acts of German state authority within the meaning of Article 93.1 no. 4a of the Basic Law and § 90.1 of the Federal Constitutional Court Act which may be challenged by the complainants.

117

3. Insofar as the second complainant’s constitutional complaint challenges an alleged omission of the EU Commission to use the measures against the indebtedness of euro area Member States provided in the Treaty on the Functioning of the European Union and to counteract their disregard of the budgetary discipline laid down in the Treaty and to prevent in this way a state of emergency coming into existence which is now used as the justification of the rescue packages (Greek rescue package and European stabilisation mechanism) which are incompatible with the Treaty, the constitutional complaint is also inadmissible. The same applies insofar as the second complainant submits that the Federal Government omitted to take measures against the speculators who, by the account of the Federal Government, speculate against the euro or against particular euro area Member States so aggressively that the rescue packages are needed to save the stability of the currency.

118

An omission on the part of the legislature may be the subject of a constitutional complaint if the complainant can rely on an express mandate of the Basic Law which essentially defines the content and scope of the duty to legislate (see BVerfGE 6, 257 <264>; 23, 242 <259>; 56, 54 <70-71>). Fundamental principles which could justify the assumption of such a duty to act on the part of the Federal Government of the EU Commission have neither been submitted with substantiation by the second complainant, nor are they otherwise apparent.

C.

119

The constitutional complaints are unfounded insofar as they are admissible. There are no well-founded constitutional objections to the Act on Financial Stability within the Monetary Union and the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism.

I.

120

Article 38.1 sentence 1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law determine the basis for judicial review. The right to vote, as a right equivalent to a fundamental right, guarantees the citizens’ self-determination and guarantees free and equal participation in the state authority exercised in Germany (see BVerfGE 37, 271 <279>; 73, 339 <375>; 123, 267 <340>, with reference to the respect for the constituent power of the people). The guaranteed content of the right to vote includes the principles of the requirements of democracy within the meaning of Article 20.1 and 20.2 of the Basic Law, which Article 79.3 of the Basic Law guarantees as the identity of the constitution (see BVerfGE 123, 267 <340>).

121

1. There is a violation of the right to vote if the German Bundestag relinquishes its parliamentary budget responsibility with the effect that it or a future Bundestag can no longer exercise the right to decide on the budget on its own responsibility.

122

a) The decision on public revenue and public expenditure is a fundamental part of the ability of a constitutional state to democratically shape itself (see BVerfGE 123, 267 <359>). The German Bundestag must make decisions on revenue and expenditure with responsibility to the people. In this connection, the right to decide on the budget is a central element of the democratic development of informed opinion (see BVerfGE 70, 324 <355-356>; 79, 311 <329>). On the one hand, the right to decide on the budget serves as an instrument of comprehensive parliamentary monitoring of the government. On the other hand, the budget brings the fundamental principle of equality of the citizens up to date in the imposition of public charges as an essential manifestation of constitutional democracy (BVerfGE 55, 274 <302-303>). In relation to the other constitutional bodies involved in establishing the budget, the elected parliament has a paramount constitutional position. Article 110.2 of the Basic Law provides that the competence to prepare the budget lies solely with the legislature. This particular position is also expressed by the fact that the Bundestag and Bundesrat are entitled and obliged under Article 114 of the Basic Law to monitor the Federal Government’s execution of the budget (see BVerfGE 45, 1 <32>; 92, 130 <137>).

123

The budget, which under Article 110.2 sentence 1 of the Basic Law is declared by the Budget Act, is not merely an economic plan, but at the same time a sovereign act of government in the form of a statute (see BVerfGE 45, 1 <32>; 70, 324 <355>; 79, 311 <328>). It is subject to a time-limit and task-related. The state functions are presented in the budget as expenses which must be covered by revenue under the principle of compensation (see BVerfGE 79, 311 <329>; 119, 96 <119>). The extent and structure of the budget thus reflect overall government policy. At the same time, the revenue achievable restricts the latitude to exercise state functions resulting in expenditure (see Article 110.1 sentence 2 of the Basic Law). Budget sovereignty is the place of conceptual political decisions on the correlation of economic burdens and privileges granted by the state. Therefore the parliamentary debate on the budget, including the extent of public debt, is regarded as a general debate on policy (BVerfGE 123, 267 <361>).

124

b) As representatives of the people, the elected Members of the German Bundestag must retain control of fundamental budgetary decisions even in a system of intergovernmental administration. In its openness to international cooperation, systems of collective security and European integration, the Federal Republic of Germany commits itself not only in legally, but also in fiscal policy. Even if such commitments assume a substantial size, parliament’s right to decide on the budget has not been infringed in a way that could be challenged with reference to the right to vote. The relevant factor for adherence to the principles of democracy is whether the German Bundestag remains the place in which autonomous decisions on revenue and expenditure are made, even with regard to international and European commitments. If decisions were made on essential budgetary questions of revenue and expenditure without the requirement of the Bundestag ‘s consent, or if supranational legal obligations were created without a corresponding decision by free will of the Bundestag , Parliament would find itself in the role of merely re-enacting and could no longer exercise overall budgetary responsibility as part of its right to decide on the budget.

125

2. Against this background, the German Bundestag may not transfer its budgetary responsibility to other actors by means of imprecise budgetary authorisations. In particular it may not, even by statute, deliver itself up to any mechanisms with financial effect which – whether by reason of their overall conception or by reason of an overall evaluation of the individual measures – may result in incalculable burdens with budget relevance without prior mandatory consent, whether these are expenses or losses of revenue. This prohibition of the relinquishment of budgetary responsibility does certainly not impermissibly restrict the budgetary competence of the legislature, but is specifically aimed at preserving it.

126

a) Accordingly, the Federal Constitutional Court has already, in connection with the opening up of the state political regime to the European Union which is intended to realise a unified Europe (see Article 23 of the Basic Law), referred to constitutional limits which the Basic Law creates to prevent Parliament limiting its own right to decide on the budget (see BVerfGE 89, 155 <172>; 97, 350 <368-369>). In this view, a transfer of the right of the Bundestag to adopt the budget and control its implementation by the government which would violate the principle of democracy and the right to elect the German Bundestag in its essential content would at all events occur if the determination of the type and amount of the levies imposed on the citizen were supranationalised to a considerable extent and thus the Bundestag would be deprived of its right of disposal (see BVerfGE 123, 267 <361>).

127

A necessary condition for the safeguarding of political latitude in the sense of the core of identity of the constitution (Article 20.1 and 20.2, Article 79.3 of the Basic Law) is that the budget legislature makes its decisions on revenue and expenditure free of other-directedness on the part of the bodies and of other Member States of the European Union and remains permanently “the master of its decisions”. There is a considerably strained relationship between this principle and guarantee authorisations which are intended to ensure the solvency of other Member States. Admittedly, it is primarily the duty of the Bundestag itself to decide, while weighing current needs against the risks of medium- and long-term-guarantees, in what maximum amount guarantee sums are responsible (see BVerfGE 79, 311 <343>; 119, 96 <142-143>). But it follows from the democratic basis of budget autonomy that the Bundestag may not consent to an intergovernmentally or supranationally agreed automatic guarantee or performance which is not subject to strict requirements and whose effects are not limited, which – once it has been set in motion – is removed from the Bundestag ‘s control and influence. If the Bundestag were to give indiscriminate authorisation in a substantial degree to guarantees, fiscal disposals of other Member States might lead to irreversible, possible massive, restrictions on national political legislative discretions.

128

For this reason, no permanent mechanisms may be created under international treaties which are tantamount to accepting liability for decisions by free will of other states, above all if they entail consequences which are hard to calculate. The Bundestag must specifically approve every large-scale measure of aid of the Federal Government taken in a spirit of solidarity and involving public expenditure on the international or European Union level. Insofar as supranational agreements are entered into which by reason of their magnitude may be of structural significance for Parliament’s right to decide on the budget, for example by giving guarantees the honouring of which may endanger budget autonomy, or by participation in equivalent financial safeguarding systems, not only every individual disposal requires the consent of the Bundestag ; in addition it must be ensured that sufficient parliamentary influence will continue in existence on the manner in which the funds made available are dealt with. The responsibility for integration borne by the German Bundestag with regard to the transfer of competences to the European Union (see BVerfGE 123, 267 <356 ff.>) has its counterpart here for budget measures of equal weight.

129

b) The provisions of the European treaties do not conflict with the understanding of national budget autonomy as an essential competence, which cannot be relinquished, of the parliaments of the Member States which enjoy direct democratic legitimation, but instead they presuppose it. Strict compliance with it guarantees that the acts of the bodies of the European Union in and for Germany have sufficient democratic legitimation (BVerfGE 89, 155 <199 ff.>; 97, 350 <373>). The treaty conception of the monetary union as a stability community is the basis and subject of the German Consent Act (BVerfGE 89, 155 <205>). In this regard, the treaties are parallel, not only with regard to currency stability, to the requirements of Article 88 sentence 2 of the Basic Law, and if appropriate also of Article 14.1 of the Basic Law, which makes compliance with the independence of the European Central Bank and the primary objective of price stability permanent constitutional requirements of a German participation in the monetary union (see Article 127. 1, Article 130 TFEU). Further central provisions on the design of the monetary union also safeguard constitutional requirements of democracy in European Union law. In this connection, particular mention should be made of the prohibition of direct purchase of debt instruments of public institutions by the European Central Bank, the prohibition of accepting liability (bailout clause) and the stability criteria for sound budget management (Articles 123 to 126, Article 136 TFEU). Although in this connection the interpretation of these provisions in detail is not essential, it is nevertheless possible to derive from them the fact that the independence of the national budgets is constituent for the present design of the monetary union, and that the acceptance of liability for decisions of other Member States with financial effect which overstretches the bases of legitimation of the association of sovereign states (Staatenverbund ) – by direct or indirect communitarisation of state debts – is to be avoided.

130

3. In establishing that there is a prohibited relinquishment of budget autonomy with regard to the extent of the guarantee given, the Federal Constitutional Court must restrict itself to manifest violations and in particular with regard to the risk of guarantees being called upon it must respect a latitude of assessment of the legislature.

131

a) The restriction to manifest violations applies to the question as to the maximum amount of a guarantee that can be responsibly given, with regard to the risks of its being called on and the consequences then to be expected for the budget legislature’s freedom to act. Whether and how far a justiciable limit of the extent of guarantee authorisations can be derived directly from the principle of democracy is questionable. At all events, unlike in the case of borrowing, Article 115.1 of the Basic Law does not explicitly provide for such a restriction (see Kube, in: Maunz/Dürig, GG , Art. 115 , marginal nos. 78, 124, 241-242; Wendt, in: von Mangoldt/Klein/Starck, GG , 6th ed. 2010, Art. 115 , marginal no. 26; for a more cautious view on the old legal position, see Siekmann, in: Sachs, GG , 5th ed. 2009, Art. 115 , marginal no. 21, according to whom guarantees of various types, at all events in the amount of the payment obligations which experience has shown to be realised, should be included in the figure for borrowing without restriction). How far what is known as the brake on debt, which was incorporated into the Basic Law in the year 2009 by the 57th Act Amending the Basic Law (57. Gesetz zur Änderung des Grundgesetzes ; Article 109.3, Article 115.2 of the Basic Law), nevertheless imposes an obligation to observe upper limits need not be decided with regard to the challenged statutes. At all events, in the present connection with its general standards based on the principle of democracy, only a manifest overstepping of extreme limits is relevant.

132

b) With regard to the probability of having to pay out on guarantees, the legislature has a latitude of assessment, which the Federal Constitutional Court must respect. The same applies to the assessment of the future soundness of the federal budget and the economic performance capacity of the Federal Republic of Germany. In this connection, the Federal Constitutional Court may not with its own expertise usurp the decisions of the legislative body which is the institution first and foremost democratically appointed for this task.

II.

133

The right to elect the Bundestag under Article 38.1 of the Basic Law is not violated by the Act on Financial Stability within the Monetary Union and the Act on the Assumption of Guarantees in Connection with a European Stabilisation Mechanism. The Bundestag has not eroded its right to decide on the budget in a constitutionally impermissible manner and thus disregarded the material content of the principle of democracy.

134

1. Insofar as it is possible to derive from the democratic principles of Article 20.1 and 20.2 of the Basic Law, which are declared unamendable by Article 79.3 of the Basic Law, a prohibition for configurations like the present one to burden present or future federal budgets with disproportionately great commitments, even if these are only guarantees, it is at all events impossible in the present case to establish that such a limit to burdens has been overstepped.

135

An upper limit to the giving of guarantees following directly from the principle of democracy could only be overstepped if in the case where the guarantee is called upon the guarantees took effect in such a way that budget autonomy, at least for an appreciable period of time, was not merely restricted but effectively failed. This cannot be established in the present case. The legislature considers that the guarantee authorisation contained in § 1 of the Euro Stabilisation Mechanism Act in the amount of 147.6 billion euros (123 billion euros plus 20%) is acceptable from the point of view of the budget even in addition to the guarantee authorisation in favour of Greece contained in the Act on Financial Stability within the Monetary Union in the amount of 22.4 billion euros; this is constitutionally unobjectionable. The same applies to the expectation that even in the case that the guarantee risk were realised in full, the losses of approximately 170 billion euros could be refinanced by way of increases of revenue, reductions of expenses and long-term government bonds, albeit possibly with the loss of growth possibilities and creditworthiness with corresponding losses of income and risk premiums. In this respect, it is in particular not relevant whether the guarantee sum is potentially far greater than the largest federal budget item and substantially exceeds half of the federal budget, because this alone cannot be the yardstick of a constitutional limit of the legislature’s latitude for action.

136

2. None of the challenged statutes creates or consolidates an automatic effect as a result of which the German Bundestag would relinquish its right to decide on the budget. At present there is no occasion to assume that there is an irreversible process with adverse consequences for the German Bundestag ‘s budget autonomy.

137

a) Even the currently applicable legal basis of the monetary union, which cannot be influenced by the two challenged statutes, does not permit an automatic effect by which the German Bundestag could relinquish its budget autonomy. All legal and factual effects of the two challenged statutes, in particular those of the further steps of execution contained in them, are decisively influenced by the treaty conception of the monetary union. The development of this is laid down in a foreseeable manner and subject to parliamentary accountability (see BVerfGE 89, 155 <204>; 97, 350 <372-373>; 123, 267 <356>). The German Consent Act to the Treaty of Maastricht (Federal Law Gazette II 1992 p. 1253; now as amended by the Treaty of Lisbon, Federal Law Gazette II 2008 p. 1038) continues to guarantee with sufficient constitutional detail that the Federal Republic of Germany does not submit to the automatic creation of a liability community which is complex and whose course can no longer be controlled (see BVerfGE 89, 155 <203-204>). De facto changes which might cast question on the binding character of this legal framework cannot at present be established by the Court; the same applies with regard to the current discussion on changes in the incentive system of the monetary union.

138

b) The challenged statutes contain no normative provisions which could – in the necessary overall consideration – undermine the principle of permanent budget autonomy.

139

aa) The Act on Financial Stability within the Monetary Union restricts the guarantee authorisation by amount, indicates the purpose of the guarantee, provides to a certain extent for the payment modalities and makes certain agreements with Greece the basis of the giving of guarantees. Thus the content of the guarantee authorisation is largely defined. Against this background it is acceptable that the German Bundestag participates in the further execution of the statutes merely in the form of giving information to the budget committee.

140

bb) The Euro Stabilisation Mechanism Act defines not only the purpose and the basic modalities, but also the volume of possible guarantees, which cannot be altered either by the Federal Government or by the special purpose vehicle without the consent of the Bundestag . The giving of guarantees is possible only during a particular period of time and it is made contingent on agreeing an economic and financial programme with the Member State affected. This programme must be consented to by the mutual agreement of the euro area Member States, which gives the Federal Government a determining influence.

141

However, § 1.4 of the Act merely obliges the Federal Government to endeavour, before giving guarantees, to reach agreement with the German Bundestag ‘s budget committee, which has the right to state an opinion (sentences 1 and 2). Insofar as compelling reasons mean that a guarantee must be given before agreement is reached, the budget committee must be subsequently informed without delay; the absolute necessity of giving the guarantee before agreement is reached must be justified in detail (sentence 3). In addition, the budget committee is to be informed quarterly on the guarantees given and their correct use (sentence 4). On the basis of these provisions alone, the continuing influence of the Bundestag on the guarantee decisions would not be ensured by procedural precautions – over and above the general political supervision of the Federal Government. For these precautions – even together with the objective, the amount of the guarantee limits and the time-limit of the Euro Stabilisation Mechanism Act – would not prevent parliamentary budget autonomy being affected in a manner which would adversely affect the right to vote. It is therefore necessary, in order to avoid unconstitutionality, for § 1.4 sentence 1 of the Euro Stabilisation Mechanism Act to be interpreted to the effect that the Federal Government, subject to the cases named in sentence 3, is obliged to obtain the prior consent of the budget committee.

D.

142

This decision was passed by seven votes to one insofar as it treats the constitutional complaints as admissible.

Voßkuhle

Di Fabio

Mellinghoff

Lübbe-Wolff

Gerhardt

Landau

Huber

Hermanns

The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

Decisions of the European Court of Human Rights which contain new aspects on the interpretation of the Basic Law (Grundgesetz – GG) are equivalent to legally relevant changes which may lead to the final and non-appealable effect of a Federal Constitutional Court decision being transcended.

a) It is true that in national law the European Convention on Human Rights is subordinate to the Basic Law. However, the provisions of the Basic Law are to be interpreted in a manner that is open to international law. At the level of constitutional law, the text of the Convention and the case-law of the European Court of Human Rights function as interpretation aids to determine the contents and scope of fundamental rights and of rule-of-law principles of the Basic Law (Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 74, 358 <370>; established case-law).

b) An interpretation that is open to international law does not require the statements of the Basic Law to be schematically parallel to those of the European Convention on Human Rights (see BVerfGE 111, 307 <323 et seq.>).

c) Limits to an interpretation that is open to international law follow from the Basic Law. Taking account of the European Convention on Human Rights may not result in the protection of fundamental rights under the Basic Law being restricted; this is also excluded by the European Convention on Human Rights itself (see Article 53 of the European Convention on Human Rights). This obstacle to the reception of law may become relevant above all in multi-polar fundamental rights relationships in which the increase of liberty for one subject of a fundamental right at the same time means a decrease of liberty for the other. The possibilities of interpretation in a manner open to international law end where it no longer appears justifiable according to the recognised methods of interpretation of statutes and of the constitution.

a) Preventive detention constitutes a serious encroachment upon the right to liberty (Article 2.2 sentence 2 of the Basic Law), and this can only be justified in compliance with a strict review of proportionality and if the decisions on which it is based and the organisation of its execution satisfy strict requirements. In this connection, the principles of Article 7.1 of the European Convention on Human Rights must also be taken into account.

b) Preventive detention is only justifiable if the legislature, in designing it, takes due account of the special character of the encroachment that it constitutes and ensures that further burdens beyond the indispensable deprivation of “external” liberty are avoided. This must be taken account of by a liberty-oriented execution aimed at therapy which makes the purely preventive character of the measure plain both to the detainee under preventive detention and to the general public. The deprivation of liberty must be designed in such a way – at a marked distance from the execution of a custodial sentence (“distance requirement”, see BVerfGE 109, 133 <166>) – that the prospect of regaining freedom visibly determines the practice of confinement.

c) The constitutional distance requirement is binding on all powers of the state and is directed initially at the legislature, which has a duty to develop an overall concept of preventive detention in line with this requirement and to lay it down in law. The central importance of this concept for the realisation of the detainee’s fundamental right to liberty requires the legislation to have a regulatory density which leaves no significant questions to be decided by the executive or the judiciary, but instead governs their actions in all material areas.

d) The distance requirement must be designed in compliance with particular minimum constitutional requirements (for details, see C. I. 2. a) ee).

Retrospective extension of preventive detention beyond the former ten-year maximum period and the retrospective imposition of preventive detention constitute serious encroachments upon the reliance of the persons affected; in view of the serious encroachment on the fundamental right to liberty involved (Article 2.2 sentence 2 of the Basic Law), this is constitutionally permissible only in compliance with a strict review of proportionality and to protect the highest constitutional interests. The weight of the affected concerns regarding the protection of legitimate expectations is reinforced by the principles of the European Convention on Human Rights in Article 5.1 and Article 7.1 of the European Convention on Human Rights.

the order of the Chamber for the Execution of Sentences of Aachen Regional

Court of 23 November 2009 – 33 StVK 269/09 K -,

2.

indirectly against

§ 67d.3 sentence 1 and § 2.6 of the Criminal Code, where they relate to preventive detention exceeding ten years for originating criminal offences committed before the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I p. 160) entered into force

1. a) § 67d.3 sentence 1 of the Criminal Code (Strafgesetzbuch StGB) as amended by the Act to Combat Sexual Offences and Other Dangerous Criminal Offences (Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten ) of 26 January 1998 (Federal Law Gazette – Bundesgesetzblatt , BGBl I page 160) – where it authorises the continuance of preventive detention beyond a period of ten years even in the case of detainees whose originating criminal offences were committed before Article 1 of the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I page 160) entered into force –, § 66b.2 of the Criminal Code as amended by the Act on the Reform of Supervision of Conduct and to Amend the Provisions on Retrospective Preventive Detention (Gesetz zur Reform der Führungsaufsicht und zur Änderung der Vorschriften über die nachträgliche Sicherungsverwahrung ) of 13 April 2007 (Federal Law Gazette I page 513), § 7.2 of the Juvenile Court Act (Jugendgerichtsgesetz – JGG) as amended by the Act to Introduce Retrospective Preventive Detention on Convictions under the Criminal Law Relating to Juvenile Offenders (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht ) of 8 July 2008 (Federal Law Gazette I page 1212) and

b) § 66 of the Criminal Code as amended by the Act to Reform the Law of Preventive Detention and on Accompanying Provisions (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung und zu begleitenden Regelungen ) of 22 December 2010 (Federal Law Gazette I page 2300), § 66 of the Criminal Code as amended by the Act on the Amendment of the Provisions on Criminal Offences Against Sexual Self-Determination and on the Amendment of Other Provisions (Gesetz zur Änderung der Vorschriften über die Straftaten gegen die sexuelle Selbstbestimmung und zur Änderung anderer Vorschriften ) of 27 December 2003 (Federal Law Gazette I page 3007), § 66a of the Criminal Code as amended by the Act to Reform the Law of Preventive Detention and on Accompanying Provisions of 22 December 2010 (Federal Law Gazette I page 2300), § 66a.1 and 66a.2 of the Criminal Code as amended by the Act on the Introduction of Reserved Preventive Detention (Gesetz zur Einführung der vorbehaltenen Sicherungsverwahrung ) of 21 August 2002 (Federal Law Gazette I page 3344), § 66b of the Criminal Code as amended by the Act to Reform the Law of Preventive Detention and on Accompanying Provisions of 22 December 2010 (Federal Law Gazette I page 2300), § 66b.1 of the Criminal Code as amended by the Act on the Reform of Supervision of Conduct and to Amend the Provisions on Retrospective Preventive Detention of 13 April 2007 (Federal Law Gazette I page 513), § 66b.3 of the Criminal Code as amended by the Act to Introduce Retrospective Preventive Detention (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung ) of 23 July 2004 (Federal Law Gazette I page 1838), § 67d.2 sentence 1 of the Criminal Code as amended by the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I page 160) – where it authorises the continuance of preventive detention for up to ten years –, § 67d.3 sentence 1 of the Criminal Code as amended by the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I page 160), § 67d.3 sentence 1 of the Criminal Code as amended by the Act to Reform the Law of Preventive Detention and on Accompanying Provisions of 22 December 2010 (Federal Law Gazette I page 2300), § 7.3 of the Juvenile Court Act as amended by the Act to Reform the Law of Preventive Detention and on Accompanying Provisions of 22 December 2010 (Federal Law Gazette I page 2300), § 7.3 of the Juvenile Court Act as amended by the Act to Introduce Retrospective Preventive Detention on Convictions under the Criminal Law Relating to Juvenile Offenders of 8 July 2008 (Federal Law Gazette I page 1212), § 106.3 sentences 2 and 3, 106.5 and 106.6 of the Juvenile Court Act as amended by the Act to Reform the Law of Preventive Detention and on Accompanying Provisions of 22 December 2010 (Federal Law Gazette I page 2300), § 106.3 sentences 2 and 3 of the Juvenile Court Act as amended by the Act on the Amendment of the Provisions on Criminal Offences Against Sexual Self-Determination and on the Amendment of Other Provisions of 27 December 2003 (Federal Law Gazette I page 3007), § 106.5 of the Juvenile Court Act as amended by the Act on the Reform of Supervision of Conduct and to Amend the Provisions on Retrospective Preventive Detention of 13 April 2007 (Federal Law Gazette I page 513) and § 106.6 of the Juvenile Court Act as amended by the Act to Introduce Retrospective Preventive Detention of 23 July 2004 (Federal Law Gazette I page 1838)

are incompatible with Article 2.2 sentence 2 in conjunction with Article 104.1 of the Basic Law.

2. § 67d.3 sentence 1 of the Criminal Code as amended by the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I page 160) in conjunction with § 2.6 of the Criminal Code – where it authorises the continuance of preventive detention beyond a period of ten years even in the case of detainees whose originating criminal offences were committed before Article 1 of the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I page 160) entered into force –, § 66b.2 of the Criminal Code as amended by the Act on the Reform of Supervision of Conduct and to Amend the Provisions on Retrospective Preventive Detention of 13 April 2007 (Federal Law Gazette I page 513) and § 7.2 of the Juvenile Court Act as amended by the Act to Introduce Retrospective Preventive Detention on Convictions under the Criminal Law Relating to Juvenile Offenders of 8 July 2008 (Federal Law Gazette I page 1212)

are in addition incompatible with Article 2.2 sentence 2 in conjunction with Article 20.3 of the Basic Law.

Under § 35 of the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht ), it is ordered as follows:

1. The provisions set out under number II.1. shall remain in application, subject to the provisos contained in the Grounds, until the legislature reforms the law, but until 31 May 2013 at the latest.

2. The provisions set out under number II.2. shall also remain in application until the legislature reforms the law, until 31 May 2013 at the latest, but subject to the following provisos.

a) In the cases covered by § 67d.3 sentence 1 in conjunction with § 2.6 of the Criminal Code in which the duration of preventive detention beyond a period of ten years applies to detainees whose originating criminal offences were committed before Article 1 of the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I page 160) entered into force, and in the cases of retrospective preventive detention under § 66b.2 of the Criminal Code and of § 7.2 of the Juvenile Court Act, committal to preventive detention or its continuance may only be ordered if a high risk of the most serious offences of violence or sexual offences can be inferred from specific circumstances in the person or the conduct of the detainee and the detainee suffers from a mental disorder within the meaning of § 1.1 number 1 of the Act on the Therapy and Committal of Mentally Disordered Violent Criminals (Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter – Therapieunterbringungs gesetz – ThUG – Therapeutic Committal Act) – Article 5 of the Act to Reform the Law of Preventive Detention and on Accompanying Provisions of 22 December 2010 (Federal Law Gazette I page 2300).

b) The competent courts for the execution of sentences shall review without delay after the pronouncement of this judgment, whether the requirements for the continuance of preventive detention under a) are satisfied. If the requirements are not satisfied, the competent courts for the execution of sentences shall order the detainees to be released with effect from 31 December 2011 at the latest.

c) In the cases of § 7.2 of the Juvenile Court Act, notwithstanding § 7.4 of the Juvenile Court Act, the review period for the suspension or termination of preventive detention is six months; in the other cases of letter a), notwithstanding § 67e.2 of the Criminal Code, it is one year.

1. The order of Nuremberg Higher Regional Court of 13 July 2009 – 1 Ws 304/09 – and the order of the external Chamber for the Execution of Sentences of Regensburg Regional Court with its seat in Straubing of 22 May 2009 – StVK 17/1998 – violate the first complainant’s fundamental rights under Article 2.2 sentence 2 in conjunction with Article 104.1 sentence 1 of the Basic Law and Article 2.2 sentence 2 in conjunction with Article 20.3 of the Basic Law. The orders are reversed. The matter is referred back to Regensburg Regional Court.

2. The order of Cologne Higher Regional Court of 1 March 2010 – 2 Ws 120/10 – and the order of the Chamber for the Execution of Sentences of Aachen Regional Court of 23 November 2009 – 33 StVK 269/09 K – violate the second complainant’s fundamental rights under Article 2.2 sentence 2 in conjunction with Article 104.1 sentence 1 of the Basic Law and Article 2.2 sentence 2 in conjunction with Article 20.3 of the Basic Law. The orders are reversed. The matter is referred back to Aachen Regional Court.

3. a) The order of Nuremberg Higher Regional Court of 22 October 2008 – 2 Ws 499/08 – and the order of Regensburg Regional Court of 14 July 2008 – KLs 121 Js 17270/1998 jug. – violate the third complainant’s fundamental rights under Article 2.2 sentence 2 in conjunction with Article 104.1 sentence 1 of the Basic Law and Article 2.2 sentence 2 in conjunction with Article 20.3 of the Basic Law. The matter is referred back to Nuremberg Higher Regional Court for a decision on the costs and the necessary expenses of the third complainant.

Where the constitutional complaint is directed against the order of Regensburg Regional Court of 18 March 2009 – KLs 121 Js 17270/1998 jug. –, it is dismissed as inadmissible.

b) The judgment of the Federal Court of Justice of 9 March 2010 – 1 StR 554/09 – and the judgment of Regensburg Regional Court of 22 June 2009 – NSV 121 Js 17270/1998 jug. – violate the third complainant’s fundamental rights under Article 2.2 sentence 2 in conjunction with Article 104.1 sentence 1 of the Basic Law and Article 2.2 sentence 2 in conjunction with Article 20.3 of the Basic Law. The judgments are reversed. The matter is referred back to Regensburg Regional Court.

4. The order of the Federal Court of Justice of 14 January 2010 – 1 StR 595/09 – and the judgment of Baden-Baden Regional Court of 18 August 2009 – 1 Ks 401 VRs 400/09 – violate the fourth complainant’s fundamental rights under Article 2.2 sentence 2 in conjunction with Article 104.1 sentence 1 of the Basic Law and Article 2.2 sentence 2 in conjunction with Article 20.3 of the Basic Law. The decisions are reversed. The matter is referred back to Baden-Baden Regional Court.

1. The Federal Republic of Germany and the Free State of Bavaria are ordered to reimburse the first complainant his necessary costs, each to bear one half.

2. The Federal Republic of Germany and the Land (state) North-Rhine Westphalia are ordered to reimburse the second complainant his necessary costs, each to bear one half.

3. The Federal Republic of Germany and the Free State of Bavaria are ordered to reimburse the third complainant his necessary costs, each to bear one half.

4. The Federal Republic of Germany and the Land Baden-Württemberg are ordered to reimburse the fourth complainant his necessary costs, each to bear one half.

Reasons:

The complainants challenge the continuance of their committal to preventive detention or the retrospective imposition of preventive detention. Indirectly, the constitutional complaints are directed against the provisions on which each of the challenged decisions is based and which relate to the continuance of preventive detention beyond a period of ten years (§ 67d.3 sentence 1 of the Criminal Code), the retrospective imposition of preventive detention in adult and juvenile criminal law (§ 66b.2 of the Criminal Code, § 7.2 of the Juvenile Court Act) and the extension of the temporal period of application of the provisions to cases in which the originating offences were committed even before the provisions entered into force (§ 2.6 of the Criminal Code).

1. a) Preventive detention was introduced by the Act against Dangerous Habitual Criminals and on Measures of Correction and Prevention (Gesetz gegen gefährliche Gewohnheitsverbrecher und über Maßregeln der Sicherung und Besserung ) of 24 November 1933 (Reich Law Gazette (Reichsgesetzblatt , RGBl) I p. 995). § 20a of the Reich Criminal Code (Reichsstrafgesetzbuch , RStGB) provided for aggravated punishment for “dangerous habitual criminals” who had already been twice sentenced to a minimum of six months’ imprisonment for a major offence or an intentional minor offence and who had incurred a sentence of imprisonment by a new intentional offence, or – regardless of any prior sentences – had committed at least three intentional offences. If a person was “convicted as a dangerous habitual criminal”, then under § 42e of the Reich Criminal Code it was mandatory that in addition to the sentence there was an order of preventive detention if public safety required it. The period in which the newly introduced law was to apply was defined in § 2a of the Reich Criminal Code as follows: decisions on measures of correction and prevention should be made on the basis of the law which applied to the decision. For a transitional period, offenders who had already been finally and non-appealably convicted and were serving their sentences at the date when the Act entered into force, retrospective imposition of preventive detention was permitted (Article 5 of the Act against Dangerous Habitual Criminals and on Measures of Correction and Prevention). In the case of sentences under the criminal law relating to juvenile offenders, it was initially not permitted to impose preventive detention (Article 3 of the Implementing Statute for the Act against Dangerous Habitual Criminals and on Measures of Correction and Prevention (Ausführungsgesetz zum Gewohnheitsverbrechergesetz )of 24 November 1933, RGBl I p. 1000).

b) The Order on Protection against Dangerous Juvenile Criminals (Verordnung zum Schutz gegen jugendliche Schwerverbrecher ) of 4 October 1939 (RGBl I p. 2000) and the Order on the Simplification and Harmonisation of the Criminal Law relating to Juvenile Offenders (Verordnung über die Vereinfachung und Vereinheitlichung des Jugendstrafrechts ) of 6 November 1943 (RGBl I p. 635) made it possible in many circumstances to apply the general criminal law to juvenile offenders and therefore also to impose preventive detention (§ 20 of the Reich Juvenile Court Act (Reichsjugendgerichtsgesetz )).

2. a) After the introduction of the Basic Law, the Juvenile Court Act of 4 August 1953 again prohibited the imposition of preventive detention on juveniles (§ 7 of the Juvenile Court Act) and on young adults who were dealt with under the criminal law relating to juvenile offenders (§ 105.1 of the Juvenile Court Act); it was now only permitted – optionally – on the conviction of young adults who were dealt with under the general criminal law (§ 106.2 of the Juvenile Court Act).

b) In other respects, the provisions on preventive detention remained largely unchanged until they were fundamentally reorganised by the First Act to Reform Criminal Law (Erstes Gesetz zur Reform des Strafrechts ) of 25 June 1969 (Federal Law Gazette I p. 645). The aggravation of punishment for “dangerous habitual criminals” in § 20a of the Criminal Code was repealed. Instead, § 42e of the Criminal Code contained a requirement that an offender was dangerous to the public “as a result of a tendency to commit serious criminal offences” for preventive detention to be imposed. At the same time, the procedural requirements for the originating conviction and criminal record were tightened, a requirement was introduced that the mandatory imposition of preventive detention was possible only where the custodial sentence was served first, the period for review of confinement was shortened and it was made possible for confinement in preventive detention to be suspended on probation. In addition, the imposition of preventive detention on young adults was prohibited even if they were convicted under the general criminal law.

3. The Second Act to Reform Criminal Law (Zweites Gesetz zur Reform des Strafrechts ) of 4 July 1969 (Federal Law Gazette I p. 717) moved the provisions on preventive detention to §§ 66 et seq. of the Criminal Code and in § 67d.1 of the Criminal Code limited the duration of preventive detention when first ordered to a maximum of ten years. The principle that decisions on measures of correction and prevention were to be decided according to the law applicable at the time of the decision was supplemented by the words “unless otherwise provided by law” and became § 2.6 of the Criminal Code. The provision, which has remained unchanged, reads as follows:

“(6) Unless otherwise provided by law, measures of correction and prevention shall be determined according to the law in force at the time of the decision.”

4. The Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I p. 160) created the possibility in § 66.3 of the Criminal Code in the case of particular offences to impose preventive detention after only one repeat offence of the same nature. In addition, the ten-year maximum period for the first order of preventive detention was repealed. At the same time, a duty to review preventive detention after it had been served for ten years was introduced in § 67d.3 sentence 1 of the Criminal Code. From this date, the provision indirectly challenged by the constitutional complaints of the first and second complainants read as follows, until the words “as a result of a propensity” were deleted, which was done from 1 January 2011:

“(3) If ten years of confinement in preventive detention have been served, the court shall declare the measure terminated unless there is a danger that the detainee, as a result of a propensity, will commit serious criminal offences as a result of which the victims will suffer serious mental or physical injury.”

Under Article 1a.2 of the Introductory Act to the Criminal Code (Einführungsgesetz zum Strafgesetzbuch , EGStGB), the revised version of § 66.3 of the Criminal Code was only to apply if one of the criminal offences listed there was committed after the Act entered into force on 31 January 1998, whereas under Article 1a.3 of the Introductory Act to the Criminal Code the revised version of § 67d.3 sentence 1 of the Criminal Code was to apply without temporal restriction, even in old cases.

5. The Act on the Introduction of Reserved Preventive Detention of 21 August 2002 (Federal Law Gazette I p. 3344) amended § 66 of the Criminal Code to the effect that preventive detention could now be ordered not only together with a prison sentence for a term of years, but also together with a sentence of life imprisonment. In addition, a new § 66a of the Criminal Code was added, which provided that in the cases of § 66.3 of the Criminal Code preventive detention could initially be reserved and a decision to impose it could be deferred to subsequent proceedings after the custodial sentence had been served. This was intended to shift the prognosis of dangerousness to a later point of time and to make it on a broader basis as a result of including information from the period of execution of the custodial sentence (see Bundestag printed paper (Bundestagsdrucksache , BTDrucks) 14/8586, p. 5). The provision was supplemented by a procedural provision in § 275a of the Code of Criminal Procedure (Strafprozessordnung , StPO) which provided that the court of first instance should conduct a trial to decide on the preventive detention reserved in the judgment.

6. The Act on the Amendment of the Provisions on Criminal Offences Against Sexual Self-Determination and on the Amendment of Other Provisions of 27 December 2003 (Federal Law Gazette I p. 3007) introduced an amendment of § 106 of the Juvenile Court Act which extended the area of application of reserved preventive detention to young adults who are sentenced under the general criminal law. Article 1a of the Introductory Act to the Criminal Code restricted the temporal application of this revised provision to the effect that one of the originating criminal offences must have been committed after the Act entered into force on 1 April 2004.

7. In its judgment of 5 February 2004 – 2 BvR 2029/01 – (Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts , BVerfGE) 109, 133), the Second Senate of the Federal Constitutional Court held that § 67d.3 of the Criminal Code and Article 1a.3 of the Introductory Act to the Criminal Code as amended by the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 was compatible with the Basic Law and rejected as unfounded the constitutional complaint of a detainee – Mr. M. –, on whom preventive detention had first been imposed before the above Act entered into force and who had been subject to preventive detention for a period longer than ten years under the new provisions. The Court held that the removal of the ten-year maximum period violated neither human dignity (Article 1.1 of the Basic Law) nor the fundamental right to liberty (Article 2.2 sentence 2 of the Basic Law), the prohibition of retroactive criminal law (Article 103.2 of the Basic Law) or the rule-of-law requirement of the protection of legitimate expectations (Article 2.2 in conjunction with Article 20.3 of the Basic Law).

8. From 2001 on, some Bundesländer (federal states) had passed statutes on criminal confinement under which offenders who had been finally and non-appealably convicted and whose dangerousness became apparent only when they were serving their custodial sentences could subsequently be committed to confinement in a penal institution. Two of these Land statutes, the Bavarian Act on the Committal of Highly Dangerous Offenders Particularly Likely to Commit Repeat Offences (Bayerisches Gesetz zur Unterbringung von besonders rückfallgefährdeten hochgefährlichen Straftätern ) of 24 December 2001 (Legal Gazette (Gesetz- und Verordnungsblatt , GVBl) p. 978) and the Act of the Land Saxony-Anhalt on the Committal of Persons Particularly Likely to Commit Repeat Offences to Avert Serious Dangers to Public Safety and Order (Gesetz des Landes Sachsen-Anhalt über die Unterbringung besonders rückfallgefährdeter Personen zur Abwehr erheblicher Gefahren für die öffentliche Sicherheit und Ordnung ) of 6 March 2002 (GVBl p. 80) were held to be incompatible with the Basic Law by the judgment of the Second Senate of the Federal Constitutional Court of 10 February 2004 – 2 BvR 834/02, 1588/02 – (BVerfGE 109, 190) because the subject-matter of the legislation was criminal law within the meaning of Article 74.1 no. 1 of the Basic Law and the Federal legislature had completely and permissibly exercised its legislative competence when it legislated on preventive detention in the Criminal Code.

9. In the Act to Introduce Retrospective Preventive Detention of 23 July 2004 (Federal Law Gazette I p. 1838), the Federal legislature exercised its legislative competence as clarified in the decision of the Second Senate. The newly introduced § 66b of the Criminal Code governed three fundamental configurations of the subsequent imposition of preventive detention. § 66b.1 of the Criminal Code – as was clarified by a reference to the requirements of § 66 of the Criminal Code – exclusively governed multiple offenders, whereas § 66b.2 of the Criminal Code also applied to first offenders, although it required a sentence of imprisonment of a minimum of five years. In all cases, the retrospective imposition of preventive detention required new facts which had become known before the custodial sentence had been fully served and which indicated that the prisoner was extremely dangerous to the public. Finally, § 66b.3 of the Criminal Code governed the case where confinement in a psychiatric hospital was terminated because the condition which excluded or reduced the defendant’s criminal responsibility and on which the confinement was based did not exist or no longer existed. The list of possible originating offences was drawn up differently for each of the three configurations. § 66b.3 of the Criminal Code referred to the offences set out in § 66.3 sentence 1 of the Criminal Code, which included the minor offences set out there and all major offences (§ 12.1 of the Criminal Code). § 66b.1 of the Criminal Code restricted the list of originating offences to the minor offences set out in § 66.3 sentence 1 of the Criminal Code and specific major offences. Retrospective imposition of preventive detention under § 66b.2 of the Criminal Code was possible only following particular major offences, but not in the case of minor offences. All three configurations required a high probability of serious criminal offences which cause serious mental or physical injury to the victims. In drafting these requirements of the prognosis of dangerousness which are stricter than those for primary and reserved preventive detention, the legislature intended to emphasise the exceptional nature of the provision (see Bundestag printed paper 15/2887, p. 13).

§ 106 of the Juvenile Court Act was also extended to include the possibility of retrospective imposition of preventive detention where young adults were sentenced under the general criminal law and where confinement in a psychiatric hospital was terminated.

10. In the Act on the Reform of Supervision of Conduct and to Amend the Provisions on Retrospective Preventive Detention of 13 April 2007 (Federal Law Gazette I p. 513), the legislature reacted to a restrictive interpretation of § 66b.1 of the Criminal Code by the courts (see Bundestag printed paper 16/4740, p. 22). The Federal Court of Justice had not regarded it as a new fact – that is, a fact that became known only after conviction – if the dangerousness of the offender was already known or could have been known at the date of conviction for the last originating offence but the trial court, for legal reasons, was unable to impose preventive detention because at the time there was no legal basis for this (see Decisions of the Federal Court of Justice in Criminal Matters (Entscheidungen des Bundesgerichtshofes in Strafsachen , BGHSt) 50, 284 <293 et seq.>; Federal Court of Justice, Order of 25 July 2006 – 1 StR 274/06 –, Neue Juristische Wochenschrift – NJW 2006, pp. 3154-3155). A sentence was therefore added to § 66b.1 of the Criminal Code providing that cases where at the date of conviction it was not possible to impose preventive detention on the basis of the old version of Article 1a of the Introductory Act to the Criminal Code or in which the possibility of imposition subject to the requirements of § 66.3 of the Criminal Code, which was passed in the year 1998, was not yet available were included in the area of application of § 66b of the Criminal Code (see Bundestag printed paper 16/4740, p. 1). § 106 of the Juvenile Court Act and § 66b.2 of the Criminal Code were adapted as necessary. The provision of § 66b.2 of the Criminal Code, which is indirectly challenged by the constitutional complaint of the fourth complainant, thereafter read as follows until its latest amendment, which entered into force on 1 January 2011:

“(2) If facts of the kind listed in subsection 1 sentence 1 above become known after a sentence of imprisonment for a minimum of five years for one or more major offences against life, physical integrity, personal liberty or sexual self-determination or under §§ 250 or 251, also in conjunction with § 252 or § 255, the court may subsequently order confinement in preventive detention if the overall assessment of the convicted person, the convicted person’s offence or offences and in addition his development while serving the custodial sentence indicate that he is highly likely to commit serious offences resulting in serious mental or physical injury to the victims.”

11. The Act to Introduce Retrospective Preventive Detention on Convictions under the Criminal Law Relating to Juvenile Offenders of 8 July 2008 (Federal Law Gazette I p. 1212), which entered into force on 12 July 2008, extended the area of application of retrospectively ordered preventive detention to the criminal law relating to juvenile offenders. The provision of § 7.2 of the Juvenile Court Act, which is indirectly challenged by the constitutional complaint of the third complainant, reads as follows:

“(2) If after sentencing to at least seven years’ youth penalty because or also because of a major offence

1. against life, physical integrity or sexual self-determination or

2. under § 251 of the Criminal Code, also in conjunction with § 252 or § 255 of the Criminal Code,

as a result of which the victim suffered severe mental or physical injury or was exposed to such a danger, facts become known before the end of this youth penalty which indicate a substantial dangerousness of the convicted person for the public, the court may subsequently order committal to preventive detention if the overall assessment of the person convicted, the convicted person’s offence or offences and in addition his development while serving the youth penalty indicate that the convicted person is highly likely to commit criminal offences of the above nature again.”

§ 7.4 of the Juvenile Court Act (in the wording in force until 31 December 2010) also provided that a number of procedural provisions, including § 275a.5 sentence 1 of the Code of Criminal Procedure, should apply with the necessary modifications. Accordingly, until the judgment was final and non-appealable, the court was permitted to issue a committal order if there were urgent reasons to assume that a retrospective order of preventive detention would be made.

12. a) In a judgment of 17 December 2009 (Application no. 19359/04, M. v. Germany ), a Chamber of the Fifth Section of the European Court of Human Rights granted the individual application of Mr. M. – the complainant in the proceedings in which the decision of the Federal Constitutional Court of 5 February 2004 – 2 BvR 2029/01 – (BVerfGE 109, 133) was pronounced – and held that Article 5.1 of the European Convention on Human Rights (right to liberty and security) and Article 7.1 of the European Convention on Human Rights (nulla poena sine lege: no criminal penalty without a law) had been violated. At the same time it ordered the Federal Republic of Germany to pay EUR 50,000 to the individual applicant. The judgment became final and non-appealable on 10 May 2010 upon the rejection of the Federal Government’s application for referral to the seven-judge chamber under Article 43 of the European Convention on Human Rights. The individual applicant M. was released.

b) In the following period, in similar cases, the Chamber of the Fifth Section of the European Court of Human Rights also held that there had been a violation of the European Convention on Human Rights […].

c) With reference to the decision of the chamber of the European Court of Human Rights of 17 December 2009, some courts competent for the execution of sentences, in cases in which the originating offences had similarly been committed before the repeal of the former maximum period in the year 1998, held that committal to preventive detention was terminated or continuance of preventive detention was impermissible when it had lasted for more than ten years. Other courts competent for the execution of sentences refused to release the persons affected. The case-law of the competent Higher Regional Courts was also inconsistent […].

Consequently, the Fourth Act to Amend the Courts Constitution Act (Viertes Gesetz zur Änderung des Gerichtsverfassungsgesetzes ) of 24 July 2010 (Federal Law Gazette I p. 976), containing an addition to § 121.2 of the Courts Constitution Act (Gerichtsverfassungsgesetz , introduced an obligation for the higher regional courts (Divergenzvorlagepflicht ), if they wished to deviate from certain decisions of another higher regional court or of the Federal Court of Justice when deciding on the termination of confinement in preventive detention or on the permissibility of its continuance, to submit the matter to the Federal Court of Justice. However, the case-law of the criminal senates of the Federal Court of Justice also developed inconsistently […].

13. The Act to Reform the Law of Preventive Detention and on Accompanying Provisions of 22 December 2010 (Federal Law Gazette I p. 2300), which entered into force on 1 January 2011, made far-reaching changes to preventive detention. The area of application of primary preventive detention under § 66 of the Criminal Code was substantially narrowed, reserved preventive detention under § 66a of the Criminal Code was extended and the retrospective imposition of preventive detention under § 66b of the Criminal Code and § 106 of the Juvenile Court Act was removed, with the exception of cases where committal to a psychiatric hospital was terminated. § 67d.3 sentence 1 of the Criminal Code was also revised. However, Article 316e.1 of the Introductory Act to the Criminal Code provides that the new provisions are to apply only if the offence or at least one of the offences for the commission of which preventive detention is to be imposed or reserved was committed after the Act entered into force on 1 January 2011; offences committed before this time are still subject to the earlier law.

In addition, on 1 January 2011 the Act on the Therapy and Committal of Mentally Disordered Violent Criminals (Therapieunterbringungsgesetz – ThUG Therapy Committal Act) entered into force as Article 5 of the Act of 22 December 2010. Under § 1 of the Therapy Committal Act, the committal of a person to a suitable closed institution may be ordered if the person can no longer be committed to preventive detention because a prohibition of retrospective aggravation of treatment in the law of preventive detention applies. A further requirement for therapeutic committal is that the person suffers from a mental disorder, is highly likely to substantially injure the life, the physical integrity, the personal liberty or the sexual self-determination of another person and the committal is necessary for this reason to protect the public. § 2 of the Therapy Committal Act provides that the committal shall be executed in an institution which is physically and organisationally separated from imprisonment, which must have a medical and therapeutic orientation and guarantee appropriate treatment of the mental disorder on the basis of an individual treatment plan and with the goal of keeping the period of committal as short as possible.

The original proceedings are based on the following facts:

1. The first complainant was born in 1955 and since the age of twenty he has only been in freedom for short periods of time. Some of his repeated prison sentences were imposed for convictions for theft, which he committed by breaking and entering the homes of single women.

a) In the year 1978 he was convicted of theft concurrently with rape and sexual assault and sentenced to four years and six months’ imprisonment. At the same time committal to a psychiatric hospital was ordered under § 63 of the Criminal Code. This order too was based on the fact that he had broken into the home of a single woman; in the case in question, he had found the woman at home and – after threatening her with a knife and undertaking several sexual acts on her – raped her. In 1985 he escaped from confinement and committed another offence of theft with breaking and entering a home. His confinement was suspended on probation in June 1986, and he was sentenced in November 1986 to one year and six months’ imprisonment for this offence, which he served until January 1988. In April 1988 he committed three further offences of theft with breaking and entering a home; in July 1988 he was given a compound sentence of one year and three months’ imprisonment for these offences, which he served until July 1989. At the beginning of August 1989 he again committed attempted theft and was sentenced to eight months’ imprisonment for this, which he served until early summer 1991. In June 1991 he was also sentenced to two years and six months’ imprisonment for sexual assault. He served this sentence until the end of December 1993.

b) In the period from March to August 1994, he committed four more offences of theft with breaking and entering a home […]. In August 1994 he was initially sentenced to one year’s imprisonment for one of these offences. Augsburg Regional Court then took this sentence into account when on 9 November 1995 it awarded him a three-year compound sentence and a further compound sentence of one year and four months for the other three offences and under § 66 of the Criminal Code ordered him to be committed to preventive detention. […]

c) The first complainant has been held in preventive detention […] since December 1998. […] On 23 May 2009 he had been in preventive detention for ten years.

d) In the order of 22 May 2009 challenged in the present proceedings, the external Chamber for the Execution of Sentences of Regensburg Regional Court with its seat in Straubing ordered the continuance of preventive detention.

aa) In the preparation of this order, the Chamber for the Execution of Sentences obtained a report from an external judicially appointed independent expert. In essence, the expert stated that with regard to the complainant’s risk of committing a repeat offence there was “a development with some positive signs, but as yet insufficient”. He found that unfavourable prognostic factors outweighed the anti-recidivist factors.

[…]

e) The complainant filed an immediate appeal […].

f) Nuremberg Higher Regional Court dismissed the immediate appeal as inadmissible in an […] order of 13 July 2009 […].

g) The first complainant then filed a complaint alleging a violation of the right to a court hearing; this was rejected in September 2009.

h) An order of the external Chamber for the Execution of Sentences of Regensburg Regional Court with its seat in Straubing – final and non-appealable from 1 April 2011 – declared that the committal to preventive detention was terminated from 17 May 2011.

2. a) The second complainant, who was born in 1957, – who has not been at liberty since October 1990 – committed his first offences, property offences, at the beginning of the 1970s, and was first given a custodial sentence, of six years’ imprisonment, in the year 1984, for two cases of rape, in each case concurrently with sexual assault and bodily harm, and in one case also concurrently with abduction against the will of the victim and unlawful imprisonment. In August 1989 he was released after serving the full six-year sentence.

b) Just under a year after his release, in late summer 1990, he committed three further offences of rape […]. On 6 March 1991, he was given a compound sentence of nine years’ imprisonment by judgment of Cologne Regional Court for rape committed together with aggravated robbery and sexual assault, for rape committed together with sexual assault and for sexual assault. At the same time he was committed to preventive detention under § 66.2 of the Criminal Code. […]

c) Following the execution of the custodial sentence, the complainant has been held in preventive detention since 16 October 1999. Since then, it has always been decided to continue this, essentially on the grounds that he has failed to process the criminal offences in therapy. On 15 October 2009, he had completed ten years of preventive detention.

d) In the order of 23 November 2009 challenged in the present proceedings, the Chamber for the Execution of Sentences of Aachen Regional Court refused to suspend on probation or declare terminated the continuance of the complainant’s preventive detention under the Regional Court’s judgment of March 1991.

[…]

e) The complainant filed an immediate appeal, relying on the judgment of the Chamber of the Fifth Section of the European Court of Human Rights of 17 December 2009 (Application no. 19359/04, M. v. Germany ) […].

f) Cologne Higher Regional Court dismissed the immediate appeal in its order of 1 March 2010, which is also challenged in the present proceedings […].

3. a) The third complainant was born in 1978; on 29 October 1999 he was sentenced to ten years’ youth penalty for murder by Regensburg Regional Court. In June 1997 – as a young adult aged 19 – he attacked and strangled a woman jogger in a wooded area. […] On 17 July 2008, the youth penalty had been completed.

[…]

d) By a judgment of 22 June 2009 – which is also challenged by the third complainant in his constitutional complaint – Regensburg Regional Court made a retrospective order of preventive detention under § 7.2 of the Juvenile Court Act. After consultation of a judicially appointed independent expert, it was determined that the complainant still had a multiple disorder of sexual preference (ICD-10 F65.6) and an emotionally unstable personality disorder of an impulsive type (ICD-10 F60.30). These mental disorders were said to have triggered the commission of the originating offence. […] His mental disorders had not yet been sufficiently treated. […] Particularly in areas of his social environment he had to expect negative, frustrating and humiliating experiences. Just as in the case of the originating offence, there was then a high probability that his violent fantasies would again intensely increase and be discharged in the form of the commission of the most serious sexual offences, as serious as sex murder committed to satisfy his sex drive.

e) The complainant’s appeal on points of law was rejected as unfounded by judgment of the Federal Court of Justice of 9 March 2010. […]

The court held that § 7.2 of the Juvenile Court Art was compatible with the constitution. The provision violated neither the prohibition of retroactive effect of criminal law (Article 103.2 of the Basic Law) nor the prohibition of double jeopardy (Article 103.3 of the Basic Law) or the rule-of-law requirement of the protection of legitimate expectations (Article 2.2, Article 20.3 of the Basic Law). Nor was there a violation of the European Convention on Human Rights. […]

4. The fourth complainant was born in 1947; he has many previous convictions and since June 1973 – apart from a few months at liberty – he has continuously been in custody or subject to measures of correction and prevention.

a) His first conviction was in the year 1968, when he was sentenced to a fine for theft; in the year 1970 he was convicted of aiding and abetting the leaving of the scene of a traffic accident and sentenced to a fine, and also to a compound sentence of one year and six months, suspended on probation, for several offences of theft, some of them aggravated.

b) In the period from October 1970 to June 1973, in a total of twelve cases he attacked and overpowered young girls in isolated locations, subjected them to fear of death by threatening them with a knife, and forced them to have vaginal or oral sex or to other sexual acts. For these offences, on 14 December 1973 Berlin Regional Court sentenced him to a compound sentence of twelve years’ imprisonment for five cases of rape, two of these committed together with the sexual abuse of children, and in seven further cases to the sexual abuse of children committed together with sexual assault. The suspension of his previous sentence on probation was revoked. He completed serving the custodial sentences imposed in December 1986.

c) In March 1987 he was again arrested and on 8 March 1988 Hannover Regional Court sentenced him to seven years and six months’ imprisonment for one offence of rape – committed on an eight-year-old girl three months after his release from custody – committed together with sexual assault, the sexual abuse of children and abduction against the will of the victim. At the same time his committal to a psychiatric hospital was ordered under § 63 of the Criminal Code.

d) In June 1988 he escaped from his confinement and assaulted a young woman, threatened her with a knife or another dangerous object, attempted to rape her and then strangled her. At the end of June 1988 he was again arrested, and on 2 February 1990 Baden-Baden Regional Court sentenced him to a compound sentence of fifteen years’ imprisonment for attempted rape and murder, and he was again ordered to be committed to a psychiatric hospital under § 63 of the Criminal Code.

[…]

e) In the following period, the complainant was confined in psychiatric hospitals under measures of correction and prevention. In April 1993, the competent chamber for the execution of sentences declared that the confinement was terminated and ordered the remainder of the custodial sentences to be executed, on the grounds that the complainant was unamenable to therapy. Following this, the remaining custodial sentences were served from June 1993 on. […] The sentences had been served in full on 5 August 2009. The complainant was then provisionally held in preventive detention.

f) On the basis of the sentencing of 2 February 1990 for attempted rape and for murder, Baden-Baden Regional Court in its judgment – challenged in the present proceedings – of 18 August 2009 under § 66b.2 of the Criminal Code retrospectively ordered the complainant to be committed to preventive detention. […] The court stated that at the date of the originating decision it had neither been known nor discernible that his submissions had been based not on authentic conduct but on a strategy.

The court also stated that the complainant had a propensity to commit serious criminal offences, must still be classified as extremely dangerous and if he was released would shortly be drawn to commit serious sexual offences such as the sexual abuse of children or rape. […]

g) The complainant’s appeal on points of law, on the application of the Federal Public Prosecutor General, was rejected as unfounded in the order – also challenged in the present proceedings – of the Federal Court of Justice of 14 January 2010 […] Whether the complainant was covered by the judgment of the European Court of Human Rights of 17 December 2009 (Application no. 19359/04, M. v. Germany ) did not need to be decided, since this judgment was not yet final.

In essence, the complainants assert a violation of their rights under Article 2.2 sentence 2 in conjunction with Article 104.1 sentence 1 of the Basic Law (personal liberty) and Article 103.2 of the Basic Law and Article 2.2 in conjunction with Article 20.3 of the Basic Law (protection of legitimate expectations). In this connection, they rely inter alia on the judgment of the Chamber of the Fifth Section of the European Court of Human Rights of 17 December 2009 (Application no. 19359/04, M. v. Germany ). They state that according to this judgment, the German courts including the Federal Court of Justice have a duty, when applying German fundamental rights, to give precedence to an interpretation in compliance with the European Convention on Human Rights, insofar as there is latitude for interpretation and weighing of interests. The fundamental rights and rights that are equivalent to fundamental rights named, they state, must therefore be interpreted in compliance with the Convention. Article 103.2 of the Basic Law is to be interpreted, in conformity with the holdings of the European Court of Human Rights, to the effect that preventive detention is a “punishment”.

In addition, the first complainant submits that despite his motivation to undergo therapy he was removed from the psychiatric hospital against his will. Apart from prison work, which he is engaged in, no further specific forms of treatment have been offered, although he is still willing to work on himself and his future.

The second complainant submits in addition that the prison in which he is confined does not comply with the distance requirement introduced by the Federal Constitutional Court in its decision pronounced on 5 February 2004 and the measure of rehabilitation and prevention is being executed in the same way as a punishment. […]

[…]

[…]

In the oral hearing, the Senate heard the judicially appointed independent expert Prof. Dr. Dittmann, senior consultant of the Forensic and Psychiatric Clinic at the Universitäre Psychiatrische Kliniken in Basel, on the possibilities and limits of forensic and psychiatric prognosis of offenders and the treatment of violent and sexual offenders. The independent experts Prof. Dr. Dessecker, Deputy Director of the Kriminologische Zentralstelle in Wiesbaden, and Leitender Regierungsdirektor Rösch, Director of Freiburg prison, described the statistical development and practical design of preventive detention. The independent expert Prof. Dr. Radtke, Director of the Criminological Institute of Hannover University, spoke on the principle of blameworthiness and the two-track system of sanctions of German criminal law, and the independent expert Prof. Dr. Tak, emeritus professor of law at Nijmegen university, explained the treatment of dangerous offenders in the Netherlands. The authorised representatives of the complainants and representatives of the Federal Government and the Länder (states) involved made submissions on the constitutionality of preventive detention, on the compatibility of this measure with the European Convention on Human Rights and on the most recent reform of the law.

The constitutional complaints are largely admissible.

[…]

Where the constitutional complaints in the proceedings 2 BvR 2365/09 and 2 BvR 740/10 indirectly challenge § 67d.3 sentence 1 of the Criminal Code as amended by the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I p. 160) in conjunction with § 2.6 of the Criminal Code, they do not cease to be admissible simply because the constitutionality of § 67d.3 of the Criminal Code and Article 1a.3 of the Introductory Act to the Criminal Code – to which § 2.6 of the Criminal Code corresponds in substance in this respect – was already upheld in the operative part of the judgment of the Federal Constitutional Court of 5 February 2004 (BVerfGE 109, 133).

It is true that the finality and non-appealability of a statement of compatibility in the operative part of the decision of the Federal Constitutional Court is in principle a procedural bar to a new judicial review of a statutes (with specific reference to the similar inadmissibility of a new judicial review of a statute at the same time, see BVerfGE 69, 92 <102-103>; 109, 64 <84>). However, according to the established case-law of the Federal Constitutional Court, the procedural bar arising from finality and non-appealability and force of law is not applicable if there are later legally relevant changes to the factual and legal situation (see BVerfGE 82, 198 <207-208>; 87, 341 <346>; 109, 64 <84>). Even if decisions of the European Court of Human Rights, as declaratory case-law, do not lead to a direct change of the legal position, particularly on the level of constitutional law, they may nevertheless have legal significance for the interpretation of the Basic Law. Where constitutional law gives latitude for such interpretation, the Federal Constitutional Court, on the basis of the principle that the Basic Law is open to international law, attempts to avoid violations of the Convention (see BVerfGE 74, 358 <370>; 83, 119 <128>; 111, 307 <317>; 120, 180 <200-201>; Chamber Decisions of the Federal Constitutional Court (Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK) 3, 4 <7-8>; 9, 174 <190>; 10, 66 <77-78.>; 10, 234 <239>; 11, 153 <159 et seq.>). Against this background, decisions of the European Court of Human Rights may be equivalent to a legally relevant change.

To the extent that they are admissible, the constitutional complaints are well-founded.

The provisions on which the challenged decisions are based are incompatible with Article 2.2 sentence 2, Article 104.1 sentence 1 and Article 2.2 sentence 2 in conjunction with Article 20.3 of the Basic Law (I.). The incompatibility with Article 2.2 sentence 2, 104.1 sentence 1 of the Basic Law is extended by § 78 sentence 2 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) to all the statutory provisions on the imposition and duration of preventive detention and corresponding subsequent provisions which are set out under number II.1. b) of the operative part of the judgment (II.). The provisions affected by incompatibility with the Basic Law will continue in force until the legislature reforms the law, and at the latest until 31 May 2013. Until then, however, they are to apply only in accordance with number III of the operative part of the judgment (III.). The permissibly challenged decisions violate the rights of the first to fourth complainants under Article 2.2 sentence 2, Article 104.1 sentence 1 and Article 2.2 in conjunction with Article 20.3 of the Basic Law. They are therefore reversed and the matters are referred back for a new decision (§ 95.2 of the Federal Constitutional Court Act); insofar as the third complainant also challenges the temporary injunction committing him to preventive detention, which was terminated when the retrospective imposition of preventive detention became final and non-appealable, it is confirmed that fundamental rights were violated and the matter is referred back for a decision on the complainant’s costs and necessary expenses (IV.).

The indirectly challenged provisions on which the challenged decisions are based are incompatible with Article 2.2 sentence 2 in conjunction with Article 104.1 sentence 1 and Article 2.2 sentence 2 in conjunction with Article 20.3 of the Basic Law.

1. The fundamental rights in Article 2.2 sentence 2 in conjunction with Article 104.1 sentence 1 of the Basic Law and Article 2.2 sentence 2 in conjunction with Article 20.3 of the Basic Law which are relevant in the present case are to be interpreted in a manner that is open to international law. It is true that in national law the European Convention on Human Rights has the status of a Federal statute and is therefore subordinate to the Basic Law (a). However, it must be relied on as an interpretation aid in the interpretation of the fundamental rights and rule-of-law principles of the Basic Law (b). This also applies to the interpretation of the European Convention on Human Rights by the European Court of Human Rights (c). This constitutional significance of the European Convention on Human Rights and thus also of the case-law of the European Court of Human Rights is based on the openness of the Basic Law to international law and its substantive orientation towards human rights (d). However, relying on this as an aid to interpretation does not require the statements of the Basic Law to be schematically parallel to those of the European Convention on Human Rights; instead, there must be a reception of the provisions of the European Convention on Human Rights (e), where this is methodically justifiable and compatible with the terms of reference of the Basic Law (f).

a) In national law, the European Convention on Human Rights has the status of a Federal statute. The European Convention on Human Rights and its protocols are agreements under international law. The Convention leaves it to the States parties to decide in what way they comply with their duty to observe the provisions of the Convention (see BVerfGE 111, 307 <316> with further references). The Federal legislature consented to the above agreements in each case by passing a formal statute under Article 59.2 of the Basic Law (Act on the Convention for the Protection of Human Rights and Fundamental Freedoms (Gesetz über die Konvention zum Schutze der Menschenrechte und Grundfreiheiten ) of 7 August 1952, Federal Law Gazette II p. 685; by the proclamation of 15 December 1953, Federal Law Gazette II 1954 p. 14, the Convention entered into force for the Federal Republic of Germany on 3 September 1953; there was a new proclamation of the Convention as amended by the 11th protocol in the Federal Law Gazette II 2002 p. 1054). In doing this, the legislature made an order on the application of the law to this effect. Within the German legal system, the European Convention on Human Rights and its protocols – insofar as they have entered into force for the Federal Republic of Germany – have the status of a Federal statute (see BVerfGE 74, 358 <370>; 82, 106 <120>; 111, 307 <316-317>). A complainant may therefore not directly challenge the violation of a human right contained in the European Convention on Human Rights by a constitutional complaint to the Federal Constitutional Court (see BVerfGE 74, 102 <128> with further references; 111, 307 <317>; BVerfGK 3, 4 <8>).

b) Nevertheless, the guarantees of the European Convention on Human Rights have constitutional significance in that they influence the interpretation of the fundamental rights and rule-of-law principles of the Basic Law. According to the established case-law of the Federal Constitutional Court, the text of the Convention and the case-law of the European Court of Human Rights serve, on the level of constitutional law, as interpretation aids to determine the contents and scope of fundamental rights and of rule-of-law principles of the Basic Law, provided that this does not lead to a restriction or reduction – which the Convention itself does not intend (see Article 53 of the European Convention on Human Rights) – of protection of fundamental rights under the Basic Law (see BVerfGE 74, 358 <370>; 83, 119 <128>; 111, 307 <317>; 120, 180 <200-201>; BVerfGK 3, 4 <7-8>; 9, 174 <190-191>; 10, 66 <77-78>; 10, 234 <239>; 11, 153 <159 et seq.>; 12, 37 <40>; Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 20 December 2000 – 2 BvR 591/00 –, Neue Juristische Wochenschrift 2001, pp. 2245 et seq.; Order of the Second Chamber of the First Senate of 21 November 2002 – 1 BvR 1965/02 –, Neue Juristische Wochenschrift 2003, p. 344 <345>; Order of the Third Chamber of the First Senate of 2 July 2008 – 1 BvR 3006/07 –, Neue Juristische Wochenschrift 2008, p. 2978 <2981>; Order of the Second Chamber of the First Senate of 18 December 2008 – 1 BvR 2604/06 –, Neue Juristische Wochenschrift 2009, pp. 1133-1134; Order of the Second Chamber of the Second Senate of 4 February 2010 – 2 BvR 2307/06 –, Europäische Grundrechte-Zeitschrift – EUGRZ2010, p. 145 <147>).

c) When invoking the European Convention on Human Rights as an interpretation aid, the Federal Constitutional Court takes account of decisions of the European Court of Human Rights even if they do not relate to the same subject matter. This is based on the fact that the case-law of the European Court of Human Rights has at all events a de facto function of orientation and guidance for the interpretation of the European Convention on Human Rights, even beyond the specific individual case in a decision (for earlier decisions on the orientation effect of the case-law of the European Court of Human Rights see BVerfGE 111, 307 <320>; BVerfGK 10, 66 <77-78>; 10, 234 <239>; in each case with further references). The effects in national law of the decisions of the European Court of Human Rights are therefore not restricted to a duty to take them into consideration, derived from Article 20.3 of the Basic Law in conjunction with Article 59.2 of the Basic Law and limited to the real-world fact situations on which the specific decisions are based, for against the background that the decisions of international courts have at least a de facto effect as precedents, the Basic Law is intended, where possible, to avoid conflicts between the obligations of the Federal Republic of Germany under international law and national law (see BVerfGE 109, 13 <23-24>; 109, 38 <50>; 111, 307 <318; 328>; 112, 1 <25>; 123, 267 <344 et seq., 347>; BVerfGK 9, 174 <193>). The openness to international law of the Basic Law is thus the expression of an understanding of sovereignty which is not only not in conflict with an integration into international and supranational contexts and their further development, but actively presumes and expects them. Against this background, even the “last word” of the German constitution is not opposed to an international and European dialogue of courts, but is the normative basis for this.

d) Invoking the European Convention on Human Rights and the case-law of the European Court of Human Rights as an interpretation aid on the level of constitutional law beyond the individual case serves to give the guarantees of the European Convention on Human Rights as extensive an application in the Federal Republic of Germany as possible, and in addition it may help to avoid the Federal Republic of Germany being held in violation. The substantive orientation of the Basic Law to human rights is expressed in particular in the German people’s profession of inviolable and inalienable human rights in Article 1.2 of the Basic Law. In Article 1.2 of the Basic Law, the Basic Law accords particular protection to the central stock of human rights. This protection, in conjunction with Article 59.2 of the Basic Law, is the basis for the constitutional duty to invoke the European Convention on Human Rights in its specific manifestation as an interpretation aid even when applying German fundamental rights. Article 1.2 of the Basic Law is therefore admittedly not a gateway to give the European Convention on Human Rights direct constitutional status, but the provision is more than a non-binding programmatic statement, in that it specifies a maxim for the interpretation of the Basic Law and makes it clear that the fundamental rights are also to be understood as a manifestation of human rights and have incorporated the latter as a minimum standard (see BVerfGE 74, 358 <370>; 111, 307 <329>; Sommermann, Archiv des öffentlichen Rechts 114 <1989>, p. 391 <406-407>; Häberle, Europäische Verfassungslehre , 7th ed. 2011, p. 259; Dreier, GG , vol. 1, 2nd ed. 2004, Art. 1 Abs. 2 , marginal no. 20; Herdegen, in: Maunz/Dürig, GG , Art. 1 Abs. 2 , marginal no. 47 with further references (2004); Giegerich, in: Grote/Marauhn, EMRK/GG, Konkordanzkommentar , 2006, ch. 2, marginal nos. 67 et seq.; Grabenwarter, Europäische Menschenrechtskonvention , 4th ed. 2009, § 3 , marginal no. 6).

e) Invoking the European Convention on Human Rights as an interpretation aid for the provisions of the Basic Law is results-oriented, as is the European Convention on Human Rights itself with regard to its enforcement in national law. It does not aim at a schematic parallelisation of individual constitutional concepts, but serves to avoid violations of international law. It is true that the removal or avoidance of a violation of international law will often be easier to achieve if national law is harmonised with the Convention. However, from the point of view of international law this is not imperative: the Convention leaves it to the States parties to decide in what way they comply with their duty to observe the provisions of the Convention (see BVerfGE 111, 307 <316> with further references and <322>; see also, on the principle that a State party which has been found in violation remains free in its choice of means to comply with its obligations under Article 46 of the European Convention on Human Rights: European Court of Human Rights (ECtHR), judgment of 13 July 2000, Application no. 39221/98 and no. 41963/98, Scozzari and Giunta v. Italy , marginal no. 249; Tomuschat, German Law Journal , Volume 5 (2011), p. 513 <517-518>).

Against this background something similar is true of an interpretation of the concepts of the Basic Law that is open to international law as of an interpretation based on a comparison of constitutions: similarities in the text of the norm may not be permitted to hide differences which follow from the context of the legal systems: the human rights content of the agreement under international law under consideration must be “reconceived” in an active process (of reception) in the context of the receiving constitutional system (see Häberle, Europäische Verfassungslehre , 7th ed. 2011, pp. 255-256; see also Dreier, GG , vol. 1, 2nd ed. 2004, Art. 1 Abs. 2 , marginal no. 20).

f) Limits to an interpretation that is open to international law follow from the Basic Law. In the first instance, such an interpretation may not result in the protection of fundamental rights under the Basic Law being restricted; this is also excluded by the European Convention on Human Rights itself (see Article 53 of the European Convention on Human Rights, see BVerfGE 111, 307 <317> with further references). This obstacle to the reception of law may become relevant above all in multi-polar fundamental rights relationships in which the increase of liberty for one subject of a fundamental right at the same time means a decrease of liberty for the other (see Wahl/Masing, Juristenzeitung – JZ 1990, pp. 553 et seq.; Hoffmann-Riem, Europäische Grundrechte-Zeitschrift 2006, p. 492; Calliess, in: Merten/Papier, HGR , vol. II, 2006, § 44 , marginal nos. 18 et seq. with further references). The possibilities of interpretation in a manner open to the Convention end where it no longer appears justifiable according to the recognised methods of interpretation of statutes and of the constitution (see BVerfGE 111, 307 <329>; see also Bernhardt, in: Festschrift für Helmut Steinberger , 2002, p. 391 <397>; Müller/Christensen, Juristische Methodik , vol. II, 2nd ed. 2007, p. 148, marginal no. 184; on the absolute limit on the core content of the constitutional identity of the Basic Law under Article 79.3 of the Basic Law, see BVerfGE 123, 267 <344>; see also A. Peters, Zeitschrift für öffentliches Recht – ZÖR65 (2010), p. 3 <59 et seq.>).

Furthermore, even where the Basic Law is interpreted in a manner open to the Convention – just as when the case-law of the European Court of Human Rights is taken into account on the level of ordinary law – the case-law of the European Court of Human Rights must be integrated as carefully as possible into the existing, dogmatically differentiated national legal system (see BVerfGE 111, 307 <327>), and therefore an unreflected adaptation of international-law concepts must be ruled out. With regard to the Basic Law – especially if a concept of the European Court of Human Rights which has developed autonomously differs in textually similar guarantees from the corresponding Basic Law concept – the principle of proportionality, a principle inherent to the Basic Law, is particularly relevant in taking account of assessments of the European Court of Human Rights: against this background, “invoking external texts as an interpretation aid” may mean also including the aspects considered by the European Court of Human Rights in its weighing of interests in the constitutional review of proportionality (see BVerfGE 111, 307 <324>; BVerfGK 3, 4 <8 et seq.>).

2. Taking these criteria into account, § 66b.2, § 67d.3 sentence 1 of the Criminal Code and § 7.2 of the Juvenile Court Act are incompatible with Article 2.2 sentence 2 and Article 104.1 sentence 1 of the Basic Law.

It is true that the provisions do not encroach upon the essence of this fundamental right (see BVerfGE 109, 133 <156>). However, they do not comply with the principle of proportionality. Preventive detention constitutes a serious encroachment upon the right to liberty, and this can only be justified in compliance with a strict review of proportionality and if the decisions on which it is based and the organisation of its execution satisfy strict requirements (a). The existing provisions on preventive detention do not structurally guarantee that the (minimum) constitutional requirements of the design of the execution of preventive detention are satisfied (b).

a) Preventive detention constitutes a serious encroachment upon the right to liberty, and this can only be justified in compliance with a strict review of proportionality and if the decisions on which it is based and the organisation of its execution satisfy strict requirements.

aa) Personal liberty – as the basis of and requirement for the citizen’s possibilities of development – has a high status among the fundamental rights. This is shown in the fact that Article 2.2 sentence 2 of the Basic Law describes it as “inviolable”, Article 104.1 sentence 1 of the Basic Law permits it to be restricted only by a formal statute and Article 104.2 to 104.4 of the Basic Law lays down particular procedural guarantees (see BVerfGE 35, 185 <190>; 109, 133 <157>). Preventive encroachments upon the fundamental right to liberty which – like preventive detention – do not serve as compensation for wrongdoing are permissible only if the protection of legal interests of high value requires this under strict compliance with the principle of proportionality. The personal liberty rights of the detainee must be set against the public’s right to safety; both must be weighed in the individual case (see BVerfGE 109, 133 <157>). In this connection, the limits of reasonableness must be observed; the fundamental right to liberty of the person affected must be ensured in both procedural and substantive law (BVerfGE 70, 297 <311>; 109, 133 <159>). In this respect, the Senate follows the constitutional requirements of preventive detention within the meaning of §§ 66 et seq. of the Criminal Code, as set out in the judgment of 5 February (BVerfGE 109, 133 <157 et seq.>).

bb) The procedural and substantive requirements of the principle of proportionality (see BVerfGE 109, 133 <157 et seq.>) apply in the same way to preventive detention in the criminal law relating to juvenile offenders under § 7.2 of the Juvenile Court Act. In this regard too, the prognosis on the basis of which preventive detention is ordered holds uncertainties which remove neither the suitability nor the necessity of the encroachment upon liberty, but which have effects on the minimum requirements placed on prognosis reports and on their evaluation in connection with the prohibition of disproportionate measures (see BVerfGE 109, 133 <158 et seq.; 164 et seq.>). As the oral hearing showed, in determining the usefulness of prognoses of dangerousness for juveniles and young adults it is impossible to determine a definite age limit below which a prognostic decision could be ruled out from the outset. Instead, the usefulness of a prognosis – which the court must make independently on the basis of a medical report which shows special expertise with regard to the youth of the person involved (see BVerfGE 109, 133 <164>) – depends on the individual development of the person in question, to which particular attention must be paid. Despite the particular difficulties entailed, therefore, it is in principle possible to prepare prognoses of dangerousness which constitute a useful basis for the decision on the (retrospective) imposition of preventive detention for juvenile and young adult offenders too, taking account of their development potential; in particular, specific mental disorders can be diagnosed at a relatively young age. Thus in the oral hearing, the expert Prof. Dr. Dittmann set out that in particular serious sexual deviances can be diagnosed even at a comparatively young age.

cc) In addition, the principles of Article 7.1 of the European Convention on Human Rights call for the constitutional requirements of the design of a preventive deprivation of liberty independent of criminal liability which is qualitatively different from a “punishment” to be defined more precisely (known as the distance requirement).

In its judgment of 5 February 2004, the Senate stated that it is not the criminal liability but the dangerousness revealed in the offence that determines the imposition, duration and above all the design of the measure of preventive detention (BVerfGE 109, 133 <174>). The originating offence is merely the point of contact for the characteristic of “dangerousness” within the meaning of the requirements for the imposition of preventive detention, not their basis. Under the scheme on which the two-track sanctions system of the Criminal Code is based, the deprivation of liberty of the detainee in preventive detention does not serve retribution for past violations of legal interests, but the prevention of future offences, which may be seen as likely to occur, but which cannot generally be predicted with certainty. The encroachment upon the fundamental right to liberty constituted by preventive detention is therefore extremely serious in part because it has exclusively preventive purposes and, in the interest of the general public, as it were imposes a special sacrifice on the person affected – since deprivation of liberty is always based only on a prognosis of dangerousness, but not on the evidence of past offences. Therefore, preventive detention is only justifiable at all if the legislature, in designing it, takes due account of the special character of the encroachment that it constitutes and ensures that further burdens beyond the indispensable deprivation of “external” liberty are avoided. This must be taken account of by a liberty-oriented execution aimed at therapy which makes the purely preventive character of the measure plain both to the detainee under preventive detention and to the general public. The deprivation of liberty must be designed in such a way – at a marked distance from the execution of a custodial sentence (“distance requirement”, see BVerfGE 109, 133 <166>) – that the prospect of regaining freedom visibly determines the practice of confinement. What is required for this is a freedom-oriented overall concept of preventive detention with a clear therapeutic orientation towards the objective of minimising the danger emanating from the detainee and of thus reducing the duration of deprivation of liberty to what is absolutely necessary.

Under Article 7.1 of the European Convention on Human Rights, no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed; nor shall “a heavier penalty” be imposed “than the one that was applicable at the time the criminal offence was committed”. On the basis of the judgment of the Chamber of the Fifth Section of the European Court of Human Rights of 17 December 2009 (Application no. 19359/04, M. v. Germany ), the subsequent extension of the earlier ten-year maximum period of § 67d.3 sentence 1 of the Criminal Code violates Article 7.1 of the European Convention on Human Rights because preventive detention is a penalty within the meaning of Article 7 of the European Convention on Human Rights (European Court of Human Rights, loc. cit., marginal no. 133), and therefore the retrospective extension is also the imposition of an additional “penalty” which was imposed retrospectively on the detainee under a statute that only entered into force after he had committed his offence (European Court of Human Rights, loc. cit., marginal no. 135). To justify the finding that preventive detention has the character of a penalty, the Chamber of the Fifth Section of the European Court of Human Rights refers inter alia to the fact that preventive detention, like a custodial sentence, results in deprivation of liberty and is executed in regular prisons. In addition, with regard to the de facto situation of the detainee under preventive detention the Chamber states that it is not apparent that preventive detention has merely a preventive function and serves no punitive purpose. It is established in particular that apparently there are no particular measures, instruments or facilities aimed at detainees in preventive detention which have the purpose of making them less dangerous and thus restricting their confinement to the period absolutely necessary to deter them from committing further offences. The Chamber also refers to further criteria, for example the procedure for imposing confinement and the severity of the measure, although this severity, it holds, is not the sole deciding factor (European Court of Human Rights, loc. cit., marginal nos. 127 et seq.). This assessment influences not only the interpretation of the requirement of the protection of legitimate expectations (on this, see (3) below) but also the general constitutional requirements placed on the proportionality of a deprivation of liberty by preventive detention.

dd) The distance requirement is based on the different constitutional objectives and bases of legitimation of prison sentences and preventive detention:

(1) Prison sentences and preventive detention are fundamentally different in their constitutional legitimation. The authorisation for the state to impose and execute prison sentences is essentially based on the culpable commission of the criminal offence. The offender may only be sentenced to imprisonment and subjected to its execution for the culpable commission of a wrong. This is based on the Basic Law’s image of humanity, which is of a person capable of free self-determination; consideration is to be given to this image in the principle of blameworthiness rooted in human dignity (see BVerfGE 123, 267 <413>). In its function of controlling the determination of penalties, the principle of blameworthiness restricts the duration of imprisonment to what is appropriate to the blameworthiness of the offence. Blameworthiness is one of the legitimating factors and the extreme limit of the imposition and execution of prison sentences. The authorisation to impose and to execute custodial measures such as preventive detention, on the other hand, follows from the principle of predominant interest (see Radtke, in: Münchener Kommentar zum StGB , vol. 1, 1st ed. 2003, Vor §§ 38 ff. , marginal no. 68). The imposition and execution of preventive detention are only legitimate if the general public’s interest in safety outweighs the right to liberty of the person involved in the individual case (see BVerfGE 109, 133 <159>).

(2) The purpose of imprisonment, therefore, is primarily repressively to impose harm as a reaction to blameworthy conduct, with the objective – in addition to other conceivable additional punitive purposes, which are not ruled out by the constitution – of compensating for wrongdoing (BVerfGE 109, 133 <173>). In contrast, the purpose of preventive detention is solely the future protection of society and its members against individual offenders who on the basis of their previous conduct are assessed as highly dangerous.

(3) The categorically different objectives and bases of legitimation of the execution of imprisonment and the execution of preventive detention result in particular in differentiations on two levels:

Since detention under measures of correction and prevention is justified solely on the principle of predominant interest, it must immediately be terminated if the interests of protection of the general public no longer outweigh the detainee’s right to liberty. In this connection, the state has the duty to provide suitable concepts in the execution of preventive detention from the outset to remove the dangerousness of the detainee if possible.

The modalities of execution must also be oriented to the guideline that life in preventive detention may be subject only to such restrictions as are necessary to reduce dangerousness. The precept of resocialisation, which is based on the Basic Law’s image of a person capable of free self-determination (BVerfGE 98, 169 <200>), applies equally to the execution of a prison sentence and to the execution of preventive detention (BVerfGE 109, 133 <151>). This may impose certain de facto limits on the details of the distance requirement, but it does not alter the fact that imprisonment and preventive detention have different objectives. The whole system of preventive detention must be designed in such a way that the practice of confinement is clearly determined by the prospect of regaining liberty.

(4) A liberty-oriented compliance with the distance requirement also takes account of the assessments made by the case-law of the European Court of Human Rights on Article 7.1 of the European Convention on Human Rights. In this connection, the Court has pointed out that in view of the indeterminate length of preventive detention particular exertions are necessary to support the detainees, who are generally not in a position to achieve progress towards release by their own efforts. The Court stated the need for a high degree of support by a multidisciplinary team and intensive and individual work with the detainees on the basis of individual plans which must be prepared without delay. This must take place within a coherent framework which facilitates progress towards release, and release should be a realistic possibility (European Court of Human Rights, judgment of 17 December 2009, Application no. 19359/04, M. v. Germany , marginal no. 129).

(5) The constitutional distance requirement is binding on all powers of the state and is directed initially to the legislature, which has a duty to develop an overall concept of preventive detention in line with this requirement and to lay it down in law (on the requirements of a statutory resocialisation concept for imprisonment, see BVerfGE 98, 169 <201>; 116, 69 <89>). In this connection, the legislature is not constitutionally bound to follow a particular legislative concept; instead, it has legislative discretion, which it must exercise by using all the knowledge at its disposal (see Federal Constitutional Court, loc. cit.). The central importance of this concept for the realisation of the detainee’s fundamental right to liberty, however, requires the legislation to have a regulatory density which leaves no significant questions to be decided by the executive or the judiciary, but instead effectively governs their actions in all material areas (see BVerfGE 83, 130 <142>).

ee) The legislative concept to be fleshed out by the legislature must therefore be structured comprehensively as a total concept and must cover at least the following aspects:

(1) Preventive detention may be imposed only as a last resort, if other, less burdensome means are insufficient to take account of the general public’s safety interest. This principle of the imposition of preventive detention as a last resort leads to the consideration that its execution must satisfy this principle too. If preventive detention comes into consideration, then during the execution of the custodial sentence all possibilities must already be exhausted to reduce the dangerousness of the detainee. In particular it must be guaranteed that any necessary psychiatric, psychotherapeutic or socio-therapeutic treatments, which often last for several years even if they are successful, begin at an early date, are carried out with the necessary high intensity, and are if possible completed before the end of punishment (last resort principle).

(2) At the beginning of the execution of preventive detention at the latest, there must without delay be a comprehensive examination of treatment possibilities which satisfies state-of-the-art scientific requirements. This must analyse in detail the individual factors which determine the dangerousness of the detainee. On this basis, an execution plan is to be drawn up showing in detail whether and if so what measures are capable of minimising risk factors, or of compensating them by reinforcing antirecidivist factors, in order to reduce the detainee’s dangerousness, as a result to enable progress towards release and to give the detainee a realistic prospect of regaining liberty. Consideration should be given to any measures of vocational training and advanced training, psychiatric, psychotherapeutic or socio-therapeutic treatment and measures for the organisation of the detainee’s financial and family circumstances and for the preparation of a suitable social environment after detention. The execution plan must be continuously updated and adapted to the detainee’s development. The measures required under the plan are to be promptly and systematically implemented. For this purpose, the detainee must be individually and intensively supported by a multidisciplinary team of qualified personnel (thus held also by the European Court of Human Rights, judgment of 17 December 2009, Application no. 19359/04, M. v. Germany , marginal no. 129). In particular in the therapeutic area, all possibilities must be exhausted. If standardised therapy methods are found to be unpromising, an individually tailored therapy programme must be developed. In this connection – especially as the duration of the execution increases – it must be ensured that possible therapies are not dispensed with merely because they entail more effort and expense than the institutions’ standardised programme (requirement of individualisation and intensification).

(3) The indeterminate length of preventive detention may have serious mental effects, demotivate the detainee and make the detainee lethargic and passive. This must in the first instance be prevented by offering a range of treatment and support which, as far as possible, gives a realistic prospect of release (thus held also by the European Court of Human Rights, loc. cit., marginal no. 77 and marginal no. 129). In addition, the detainee must be encouraged and assisted to cooperate in treatment by targeted motivational work. A possible supporting element could be a system of incentives which rewards active cooperation with particular privileges or liberties or removes these in order to achieve motivation and cooperation (requirement of motivation).

(4) The design of the objective parameters of confinement must take account of the special anti-recidivist character of preventive detention and must show a clear distance from regular imprisonment. Life in detention under measures of correction and prevention must be adapted to general living conditions, provided security concerns do not prevent this. Admittedly, this requires detainees to be accommodated separately from the prison regime in special buildings or wards, but not a complete spatial detachment from the execution of custodial sentences (requirement of separation). As the expert Mr. Rösch explained in the oral hearing, it may be advisable for these to be connected to large institutions, in order to make use of their infrastructure and safety management and to guarantee a varied range of work and leisure opportunities which takes account of the detainees’ individual abilities and inclinations. The circumstances inside the facility must satisfy the therapeutic requirements and offer sufficient possibilities for visits in order to maintain family and social contacts. It must also be ensured that sufficient personnel are available to satisfy in practice the demands of a liberty-oriented overall concept of preventive detention that is aimed at therapy.

(5) Relaxations of execution on a trial basis are particularly important for the prognosis, because they broaden and stabilise its basis; they may prepare for a termination of preventive detention. The preventive detention scheme must provide for relaxations of execution and contain requirements to prepare for release; account should be taken as extensively as possible of an orientation to liberty. Thus it must be ensured that relaxations of execution may not be refused without a compelling reason – for example on the basis of indiscriminate assessments or with reference to a danger of flight or abuse that is merely abstract (see BVerfGE 109, 133 <166>; 117, 71 <108>). If unsupervised relaxations such as work release, short leave or leave are nevertheless impossible, escorted leave must be granted; this may only be refused if despite the supervision of the detainee it leads to dangers which it would plainly be irresponsible to risk. To ensure that decisions on the relaxation of execution are made on the basis of objective, realistic risk assessments and to forestall the danger of over-cautious or prejudiced evaluations, the establishment of independent bodies of experts with experience of execution may, for example, be valuable; these can provide advice and make recommendations – possibly modelled on the Swiss expert commissions for the review of the public danger of offenders (see Article 62d.2, Article 64b.2, Article 75a of the Swiss Criminal Code (Strafgesetzbuch )). The preparation for release must be interlinked with systematic assistance for the post-release phase. In particular, a sufficient variety of institutions (forensic outpatient clinics, institutions for assisted living and so on) must be guaranteed which take in detainees after release, and ensure the necessary care and thus a suitable social environment after detention (minimisation requirement).

(6) Furthermore, the detainee must be granted an effectively enforceable legal claim to the measures necessary to reduce the detainee’s dangerousness being implemented. The detainee must be offered a suitable legal advisor or other assistance to give support in exercising rights and interests (requirement of legal protection and assistance).

(7) It must be guaranteed under procedural law that the continuance of preventive detention is judicially reviewed at least once a year. The execution authority must provide the competent chamber for the execution of sentences with a regular status report. If there are indications that the preventive detention is ready to be terminated, then ex officio a special review must be carried out without delay (requirement of monitoring). The stricter supervision by the courts takes account of the purely preventive nature of the measure. It must be intensified as the execution proceeds. This applies both to the length of the intervals between the judicial reviews and also to the ex officio necessary monitoring of the executing authorities and the qualitative criteria for establishing the facts with regard to the substantiation of their content (see BVerfGE 109, 133 <162>).

b) The present provisions on preventive detention do not satisfy these requirements.

Since 1998, the legislature, in the Act on the Introduction of Reserved Preventive Detention of 21 August 2002 (Federal Law Gazette, BGBl I p. 3344), the Act on the Amendment of the Provisions on Criminal Offences Against Sexual Self-Determination and on the Amendment of Other Provisions of 27 December 2003 (BGBl I p. 3007), the Act to Introduce Retrospective Preventive Detention of 23 July 2004 (BGBl I p. 1838), the Act on the Reform of Supervision of Conduct and to Amend the Provisions on Retrospective Preventive Detention of 13 April 2007 (BGBl I p. 513) and the Act to Introduce Retrospective Preventive Detention on Convictions under the Criminal Law Relating to Juvenile Offenders of 8 July 2008 (BGBl I p. 1212), has increasingly expanded preventive detention, but without – contrary to the instructions of the Senate in its judgment of 5 February 2004 (BVerfGE 109, 133 <166-167>) – developing a liberty-oriented overall concept for preventive detention aimed at therapy that would do justice to the distance requirement. The Act to Reform the Law of Preventive Detention and on Accompanying Provisions of 22 December 2010 (BGBl I p. 2300) begins to revise this development in § 2 of the Therapeutic Committal Act. But the old legal position continues to apply if the originating offence in question was committed before 1 January 2011 (Article 316e.1 of the Introductory Act to the Criminal Code).

aa) Following the end of the Federal legislature’s concurrent legislative competence on imprisonment in the federalism reform in the year 2006 (Article 1 no. 7 a of the Act Amending the Basic Law (Gesetz zur Änderung des Grundgesetzes ) of 28 August 2006, BGBl I p. 2034), the Federal Prison Act (Strafvollzugsgesetz, StVollzG) still applies in most Länder under Article 125a.1 of the Basic Law; just like the prison Acts (Strafvollzugsgesetze ) of the Länder Bavaria, Hamburg and Hesse, the Baden-Württemberg Prison Code (Justizvollzugsgesetzbuch ) and the Lower Saxony Prison Act (Justizvollzugsgesetz ), the Federal Prison Act contains only rudimentary provisions on the execution of preventive detention, relating to marginal areas such as the furnishing of the cells, clothing and pocket money, and apart from this lays down that the provisions on the execution of custodial sentences are to apply with the necessary alterations (§§ 129 et seq. of the Federal Prison Act). These provisions are unsuitable to satisfy the criteria of the constitutional distance requirement. Essentially, they provide excessively broad scope for assessment and discretion in fundamental core areas – with regard to treatment, care and motivation of the detainee and granting of relaxations of execution – without effectively obliging the prisons by clear legislative conditions to pursue a liberty-oriented execution of preventive detention aimed at therapy. With regard to the preceding execution of a custodial sentence, there are no provisions to avoid preventive detention. Above all, removing the detainee to a socio-therapeutic institution is mandatorily laid down only in the case of specific sexual offences (§ 9.1 of the Federal Prison Act); apart from this – even where preventive detention is imposed – it is at the discretion of the prison and also requires the consent of the head of the socio-therapeutic institution (§ 9.2 of the Federal Prison Act). Neither a spatial separation of confinement in preventive detention from imprisonment nor the appointment of a legal adviser is laid down. In addition there are other normative shortcomings. The overall normative concept must contain qualitative standards for the personnel and the material equipment for the execution of preventive detention; these standards must be respected by the Land legislature in the budget and do not leave any substantial room for interpretation to the executive. In addition, the statutory maximum period for the review of preventive detention – apart from preventive detention in convictions under the criminal law relating to juvenile offenders, for which annual reviews are provided as the standard (§ 7.4 of the Juvenile Court Act) – in § 67e.2 of the Criminal Code, which is two years, is too long.

bb) The shortcomings of the legislation are another reason why the actual execution of preventive detention takes insufficient account of the requirements following from the distance requirement, as recent scientific findings show and as the hearing of the experts Mr. Rösch and Prof. Dr. Dessecker in the oral hearing confirmed. There are shortcomings not only during preventive detention as such. Even in the custodial sentence which precedes preventive detention there are considerable defects which have effects on the execution and duration of preventive detention and thus on the chance of regaining liberty. In addition, in many places there is neither adequate preparation for release nor creation of a suitable social environment to receive the detainee after release.

The psychological or psychiatric support of the detainees is inadequate in practice. According to studies, an average of only approximately 30% of detainees in preventive detention receive therapy, although the proportion of detainees with characteristics which appear to need treatment is markedly higher, at 79.3% (see Bartsch, Sicherungsverwahrung , 2010, p. 228; Habermeyer, Die Maßregel der Sicherungsverwahrung , 2008, p. 54). The cause of this may only to a limited extent be attributed to the sphere of the persons affected. The small number of detainees under preventive detention who are in therapeutic treatment is also specifically attributable to insufficient staff and equipment of the institutions. In this connection it should be taken into account that successful liberty-oriented therapeutic treatment will generally require a greater number of personnel, for example also to motivate those unwilling to undergo therapy (Bartsch, loc. cit., pp. 228 et seq.).

Although prison service practitioners see great potential in the therapy possibilities of socio-therapeutic institutions to give detainees under preventive detention the opportunity to regain their freedom and to prevent life detention, there are considerable problems in accommodating these detainees in socio-therapeutic institutions. One reason for this is that the socio-therapeutic institutions often do not have enough places for preventive detention detainees. At the same time, in many places socio-therapeutic institutions are extremely unwilling to take in such detainees (Bartsch, loc. cit., pp. 232 et seq.). This is particularly clearly shown by the small number of persons affected who are in a socio-therapeutic institution: in March 2010, of a total of 536 persons who were ordered to be placed in preventive detention, only 83 were in social therapy (Niemz, Kriminologische Zentralstelle e.V., Sozialtherapie im Strafvollzug , 2010, p. 13). In addition, joint socio-therapeutic treatment of detainees in preventive detention and prisoners is often not tailored to the special needs of the former and therefore frequently results in undesirable developments (Bartsch, loc. cit., pp. 232 et seq.).

What is more, during the period of imprisonment of those who were given an order of subsequent preventive detention when they were convicted there is insufficient work towards a suspension of the detention on probation. § 67c.1 of the Criminal Code provides that if a measure of correction and prevention begins after a custodial sentence is served, there must be a new review as to whether the purpose of the measure still requires detention; but despite this, the period of the custodial sentence often passes without being put to use for prisoners with subsequent preventive detention. Thus, for example, the persons affected are on the one hand generally not permitted relaxations of execution such as short leave and leave or detention in an open institution. At the same time, the prisoners whose custodial sentences are followed by preventive detention are often not given access to the necessary therapy, or only given access in a secondary capacity, by the institutions (Bartsch, loc. cit., pp. 245 et seq.). But early commencement of therapy – during the custodial sentence – is the crucial deciding factor to avoid subsequent preventive detention or at least to make it as short as possible.

In addition, the possibility of granting relaxations of execution is used only extremely restrictively, although these relaxations serve particularly to prepare the detainee for release and are in addition of special importance with regard to the prognosis of the detainee’s dangerousness (see BVerfGE 109, 133 <165-166> with further references). Above all, only in the rarest cases are unescorted measures such as short leave, work release and leave granted (Bartsch, loc. cit., pp. 220 et seq.).

Finally, another obstacle to the release of the detainee under preventive detention is the frequent lack of structured cooperation between the institutions and institutions of post-detention care, and the failure to create a secured social environment to receive the detainee after release from preventive detention. Thus, for example, there is a particular lack of places in facilities for assisted living which are able to accept the detainee after release (Bartsch, loc. cit., pp. 242 et seq.). In addition, there are problems in the transition of treatment from detention to later outpatient therapies. As the oral hearing showed, therefore, there is a particular need for the creation of networks and suitable organisational structures in order to ensure consistent post-detention care of the detainee released after preventive detention.

cc) The lack of an overall statutory concept of preventive detention satisfying the constitutional distance requirement means that the indirectly challenged provisions are unconstitutional. The legislature may constitutionally draft provisions on the imposition and duration of this measure only as integral parts of a liberty-oriented overall concept aimed at therapy. In particular, justice is not done to the high status of the right to liberty if the imposition of preventive detention is granted in isolation, although the constitutional requirements of the design of this measure are not structurally guaranteed because of normative shortcomings. The persons affected are as it were subjected to an unconstitutional deprivation of liberty in full awareness of the situation.

From the perspective of the protection of liberty, it is irrelevant in this connection that since the federalism reform in the year 2006 the Federal legislature has no longer been competent to legislate on imprisonment. If, under its legislative competence for criminal law under Article 74.1 no. 1 of the Basic Law, it decides in favour of a two-track system of sanctions and the use of such a drastic custodial measure as preventive detention, it must itself legislate on the essential guidelines of the liberty-oriented overall concept aimed at therapy which is constitutionally required to be the basis of this detention and ensure that this conceptual orientation of preventive detention cannot be undermined by provisions of Land law.

The Federal and Land legislatures have a joint duty to create a legislative concept which satisfies the requirements set out above. It is their task, taking account of the constitutional system of competences, to develop a liberty-oriented overall concept of preventive detention aimed at therapy. In this process, the Federal legislature, in view of its concurrent legislative competence for criminal law under § 74.1 no. 1 of the Basic Law, is restricted to laying down the essential guidelines – but, if it in principle wishes to retain the institution of preventive detention, it is at the same time obliged to do so. Requirements of this nature are found, for example, in § 2 of the Therapeutic Committal Act. In addition, the Federal legislature is competent for the provisions on judicial review of the continuance of preventive detention and for procedural provisions. The Land legislatures, in turn, must in the exercise of their legislative competence draft provisions for the execution of preventive detention which ensure compliance with the distance requirement and are effective, and which guarantee liberty-oriented execution aimed at therapy. Here, it is necessary above all to ensure that the requirements set out above cannot be circumvented in practice as a result of granting too much latitude, and that the distance requirement thus de facto comes to nothing. Without complying with the distance requirement, the institution of preventive detention is incompatible with the fundamental right to liberty of detainees under preventive detention.

3. § 67d.3 sentence 1 in conjunction with § 2.6 of the Criminal Code – where it authorises the continuance of preventive detention beyond a period of ten years even in the case of detainees whose originating criminal offences were committed before Article 1 of the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I p. 160) entered into force – and § 66b.2 of the Criminal Code and § 7.2 of the Juvenile Court Act are in addition also incompatible with Article 2.2 sentence 2 in conjunction with Article 20.3 of the Basic Law.

The provisions on review entail an encroachment upon the reliance of the persons concerned that preventive detention will end after a period of ten years (§ 67d.3 of the Criminal Code) or upon the reliance that no preventive detention will be imposed (§ 66b of the Criminal Code; § 7.2 of the Juvenile Court Act); in view of the associated encroachment upon the right to liberty of this group of persons (Article 2.2 sentence 2 of the Basic Law), this is constitutionally permitted only in compliance with a strict review of proportionality and to protect the highest constitutional interests (a). The weight of the affected concerns regarding the protection of legitimate expectations is also reinforced by the principles of the European Convention on Human Rights (b) with the result that a deprivation of liberty which is ordered or prolonged retrospectively can only be regarded as permissible if the required distance from punishment is preserved, if a high risk of the most serious offences of violence or sexual offences can be inferred from specific circumstances in the person or conduct of the detainee and if the requirements of Article 5.1 sentence 2 of the European Convention on Human Rights are satisfied (c).

a) The provisions constitute an encroachment upon the reliance of the persons affected; in view of the associated encroachment upon the fundamental right to liberty (Article 2.2 sentence 2 of the Basic Law), this is constitutionally permissible only in compliance with a strict review of proportionality and to protect the highest legal interests.

Each of the provisions constitutes a considerable encroachment on the fundamental right to liberty on Article 2.2 sentence 2 of the Basic Law, which for a particular group of persons – which also includes the first to fourth complainants – is additionally aggravated in that preventive detention, contrary to the earlier legal position which applied at the date of the originating offences, can retrospectively be extended beyond a period of ten years without a time-limit (thus in the configuration of § 67d.3 sentence 1 of the Criminal Code in conjunction with § 2.6 of the Criminal Code), or in that an order of preventive detention may retrospectively be imposed on them even though the judgment of the trial court did not do so and did not reserve the power to do so (thus in the configuration of § 66b.2 of the Criminal Code and § 7.2 of the Juvenile Court Act). This constitutes an encroachment upon the reliance of the subjects of fundamental rights whose right to liberty is affected, irrespective of whether there is assumed to be “genuine” or “false” retroactive effect or a retroactive effect of legal consequences or a retroactive criminalisation of earlier acts (tatbestandliche Rückanknüpfung ) (for an earlier decision on this, with regard to § 67d.3 sentence 1 in conjunction with Article 1a.3 of the Introductory Act to the Criminal Code old, see BVerfGE 109, 133 <182-183>).

Subject to the requirement of the protection of legitimate expectations – which takes effect in connection with the matters guaranteed by the fundamental right under Article 2.2 sentence 2 of the Basic Law, whose area of protection is affected (see BVerfGE 72, 200 <242>) – the limits of legislative competence follow from weighing the concerns of the protection of legitimate expectations affected and the importance of the legislative concern for the public interest (see BVerfGE 14, 288 <300>; 25, 142 <154>; 43, 242 <286>; 43, 291 <391>; 75, 246 <280>; 109, 133 <182>). Here, the importance of the concerns of the protection of legitimate expectations increases depending on the severity of the encroachment upon the objectively affected fundamental right (for an earlier decision, see BVerfGE 109, 133 <186-187>).

On this basis, a particularly great weight may be attributed to the concerns of the protection of legitimate expectations, for the provisions in question, in that they authorise the imposition or extension of an indeterminate deprivation of liberty by preventive detention, contain a serious – and possibly the most serious conceivable – encroachment upon the objectively affected fundamental right to liberty (Article 2.2 sentence 2 of the Basic Law) and thus upon a right which already in itself has particular weight among the rights guaranteed as fundamental rights (see BVerfGE 65, 317 <322>). The encroachment made by preventive detention upon the fundamental right under Article 2.2 sentence 2, Article 104.1 sentence 1 of the Basic Law, even if the distance requirement is complied with, is comparable to a custodial sentence with regard to the permanent deprivation of external liberty which is unavoidably entailed by preventive detention. As a result, the detainee’s expectation of regaining freedom at a particular point in time acquires particular significance (for an early decision, see BVerfGE 109, 133 <185>).

b) The weight of the affected concerns regarding the protection of legitimate expectations is also reinforced by the principles of the European Convention on Human Rights.

In this respect it should be taken into account that the violation of the distance requirement (see 2 above), according to the principles of Article 7.1 of the European Convention on Human Rights, gives the reliance of the persons involved a weight approaching that of an absolute protection of legitimate expectations (aa). It must in addition be taken into account that under Article 5 of the European Convention on Human Rights the deprivation of liberty in the cases under discussion here of § 67d.3 in conjunction with § 2.6 of the Criminal Code and of § 66b.2 of the Criminal Code and of § 7.2 of the Juvenile Court Act may be justified only subject to the requirements of Article 5.1 sentence 2 (e) of the European Convention on Human Rights (bb).

aa) According to the principles of Article 7.1 of the European Convention on Human Rights, the result of the insufficient distance of the execution of preventive detention from that of prison sentences is that the weight of the reliance of the persons affected approaches an absolute protection of legitimate expectations.

(1) On the basis of the judgment of the Chamber of the Fifth Section of the European Court of Human Rights of 17 December 2009 (Application no. 19359/04, M. v. Germany ) the retrospective extension of the earlier ten-year maximum period of § 67d.3 sentence 1 of the Criminal Code violates Article 7.1 of the European Convention on Human Rights because preventive detention is a penalty within the meaning of Article 7 of the European Convention on Human Rights (European Court of Human Rights, loc. cit., marginal no. 133); see 2. a) cc) above). The constitutional classification of preventive detention is based inter alia on the fact that, like a custodial sentence, it results in deprivation of liberty and is served in regular prisons. In addition, according to the Chamber of the Fifth Section of the European Court of Human Rights, with regard to the de facto situation of the detainee under preventive detention it is not apparent that preventive detention has merely a preventive function and serves no punitive purpose. In this regard, the Chamber points out that there are no particular measures, instruments or facilities aimed at detainees in preventive detention which have the purpose of making them less dangerous and thus restricting their confinement to the period absolutely necessary to deter them from committing further offences. The Chamber also refers to further criteria, for example the procedure for imposing detention and the severity of the measure, although this severity, it holds, is not the sole deciding factor (European Court of Human Rights, loc. cit., marginal nos. 127 et seq.).

(2) This interpretation of Article 7.1 of the European Convention on Human Rights suggests that the distance requirement should be given even clearer contours, but it does not create an obligation to completely adapt the interpretation of Article 103.2 of the Basic Law to that of Article 7.1 of the European Convention on Human Rights. As long ago as 2004, the Federal Constitutional Court, in its decision of 4 February 2004, discussed the aspect of the de facto effect of a measure of correction and prevention; although it did not find this to be conceptually relevant for the element of punishment in Article 103.2 of the Basic Law, it did find a possibility of taking it into account in connection with Article 2.2 sentence 2 in conjunction with Article 20.3 of the Basic Law (see BVerfGE 109, 133 <185>). This also applies to the aspect of the severity of the measure – in the present case an indeterminate deprivation of liberty –; although it is not a suitable element to define the concept of punishment within the meaning of Article 103 of the Basic Law (see BVerfGE 109, 133 <175>), in the review of the fundamental right to liberty the Federal Constitutional Court has nevertheless consistently held that it is an element that should be taken into account (see BVerfGE 109, 133 <160-161>; 70, 297 <314-315>). It is true that similarities in this respect do not justify subsuming preventive detention to the concept of punishment within the meaning of Article 103 of the Basic Law (BVerfGE 109, 133 <176>). However, according to the Senate’s case-law, even the Basic Law itself, in connection with a review of a violation of Article 2.2 in conjunction with Article 20.3 of the Basic Law in the case of measures of correction and prevention lasting many years and involving deprivation of liberty, contains the requirement to take into account whether or that “the detainee is likely to experience preventive detention […] as comparable to punishment, inter alia with regard to its actual execution” (see BVerfGE 109, 133 <185>). In this connection, the requirement of the protection of legitimate expectations is closely related and structurally similar to the “nulla poena” principle (see BVerfGE 109, 133 <171-172>).

There is therefore no occasion to adapt the constitutional concept of punishment in Article 103.2 of the Basic Law – and thus at the same time that of Article 103.3 of the Basic Law – to the concept of punishment of Article 7.1 of the European Convention on Human Rights. The European Court of Human Rights itself states in this connection that the concept of “punishment” within the meaning of Article 7 of the European Convention on Human Rights is to be interpreted “autonomously”; it – the Court – is not bound by the classification of a measure under national law (European Court of Human Rights, judgment of 17 December 2009, Application no. 19359/04, M. v. Germany , marginal no. 126). This method followed by the European Court of Human Rights in creating concepts has its justification for the purposes of the European Convention on Human Rights. The independence of the concept formation of the European Court of Human Rights and the necessarily entailed flexibility and lack of precision take account of the legal, linguistic and cultural variety of the Member States of the Council of Europe (see Grabenwarter, Europäische Menschenrechtskonvention , 4th ed. 2009, § 5 , marginal nos. 9 et seq.). In contrast, for the constitutional system of the Basic Law, which has developed over the years, the concept of punishment in Article 103 of the Basic Law, as it was expressed in the decision of 5 February 2004 (BVerfGE 109, 133 <167 et seq.>), must be adhered to.

bb) Furthermore, the principles of Article 5 of the European Convention on Human Rights are to be taken into account on the part of the detainees committed to preventive detention. From this aspect, a justification of the deprivation of liberty in the cases covered by the indirectly challenged provisions of § 67d.3 sentence 1 of the Criminal Code as amended by the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I p. 160) in conjunction with § 2.6 of the Criminal Code and of § 66b.2 of the Criminal Code as amended by the Act on the Reform of Supervision of Conduct and to Amend the Provisions on Retrospective Preventive Detention of 13 April 2007 (Federal Law Gazette I p. 513) and of § 7.2 of the Juvenile Court Act as amended by the Act to Introduce Retrospective Preventive Detention on Convictions under the Criminal Law Relating to Juvenile Offenders of 8 July 2008 (Federal Law Gazette I p. 1212) comes into consideration virtually only subject to the requirements of an unsound mind within the meaning of Article 5.1 sentence 2 (e) of the European Convention on Human Rights.

Article 5.1 of the European Convention on Human Rights contains an exhaustive list of permissible grounds for deprivation of liberty (see European Court of Human Rights, judgment of 17 December 2009, Application no. 19359/04, M. v. Germany , marginal no. 86). To justify the configurations in the present case, Article 5.1 sentence 2 (a) of the European Convention on Human Rights is not applicable as a ground of detention (1). Article 5.1 sentence 2 (c) of the European Convention on Human Rights is also generally not applicable (2), and therefore preventive detention in the configurations in the present case may be brought into line with Article 5 of the European Convention on Human Rights, if at all, only subject to Article 5.1 sentence 2 (e) of the European Convention on Human Rights (3).

(1) With regard to Article 5.1 sentence 2 (a) of the European Convention on Human Rights, it must first be taken into account that a justification of the deprivation of liberty under this provision in the configurations in question here is no longer applicable in view of the recent case-law of the Chamber of the Fifth Section of the European Court of Human Rights (see in particular the judgment of 17 December 2009, Application no. 19359/04, M. v. Germany and the judgments of 13 January 2011, Application no. 17792/07, Kallweit v. Germany and Applications nos. 27360/04, 42225/07, Schummer v. Germany ).

In the case of the individual applicants in question, the preventive detention retrospectively extended beyond a period of ten years was not justified under Article 5.1 sentence 2 (a) of the European Convention on Human Rights as “the lawful detention of a person after conviction by a competent court” because – according to the Chamber of the Fifth Section of the European Court of Human Rights in its judgments – there was no sufficient causal connection between the conviction and the continued deprivation of liberty beyond a period of ten years, since this was only possibly on the basis of the reform of the law in 1998 (see European Court of Human Rights, judgment of 17 December 2009, Application no. 19359/04, M. v. Germany , marginal nos. 97 et seq., marginal no. 100).

In addition, the Chamber of the Fifth Section, in a further judgment of 13 January 2011 (Application no. 6587/04, Haidn v. Germany ), found there was no justification under Article 5.1 sentence 2 (a) of the European Convention on Human Rights in the case of an individual applicant who after serving his prison sentence on the basis of the Bavarian Committal of Offenders Act (Bayerisches Straftäterunterbringungsgesetz , BayStrUGB) was subsequently confined in a prison by reason of his dangerousness. On this occasion, the Chamber again pointed out that the decision of a special court for the execution of sentences to continue to deprive the person involved of liberty does not satisfy the requirement of “conviction” within the meaning of Article 5.1 sentence 2 (a) because it no longer contains an element of a “finding that the person is guilty of an offence” (European Court of Human Rights, judgment of 13 January 2011, Application no. 6587/04, Haidn v. Germany , marginal no. 84).

The Senate therefore proceeds on the basis than in all the cases known as old cases in which the persons involved were convicted of their originating offences before the relevant revised statutes entered into force – that is, in all the cases affected by the retrospective application of the extension of the ten-year period under § 67d.3 sentence 1 in conjunction with § 2.6 of the Criminal Code and in all cases of retrospective subsequent imposition of preventive detention under § 66b.2 of the Criminal Code and § 7.2 of the Juvenile Court Act – justification of preventive detention under Article 5.1 sentence 2 (a) of the European Convention on Human Rights will generally be out of the question.

This additionally applies to subsequent preventive detention under § 66b.2 of the Criminal Code and § 7.2 of the Juvenile Court Act irrespective of the retrospective period of application of the provisions, that is, also in what are known as new cases, for these provisions permit a subsequent deprivation of liberty in the definitions of the offences themselves. Admittedly – unlike in the “old cases” decided by the European Court of Human Rights to date – this is done in the form of an independent (second) judgment and not merely by the order of a chamber for the execution of sentences. The (second) judgment, however, contains no new finding of criminal responsibility, but presupposes one.

(2) The principles of Article 5.1 sentence 2 (c) of the European Convention on Human Rights are also to be taken into account in the weighing of interests. This provides that deprivation of liberty for the purpose of bringing a person “before the competent legal authority” is justifiable “when it is reasonably considered necessary to prevent his committing an offence”. It is true that this ground of detention, as interpreted by the European Court of Human Rights, is merely “a means of preventing a concrete and specific offence” (see European Court of Human Rights, judgment of 17 December 2009, Application no. 19359/04, M. v. Germany , marginal no. 89) and is subject to formal requirements (“for the purpose of bringing him before the competent legal authority”) which will not in general apply in connection with preventive detention – at all events in normal circumstances. Nevertheless, the existence of Article 5.1 sentence 2 (c) of the European Convention on Human Rights among the principles confirms that the European Convention on Human Rights permits preventive deprivation of liberty if a danger is concrete and specific enough. However, in the cases under consideration here such a danger is likely to be found only in quite exceptional circumstances.

(3) In consequence of all the above, a justification of deprivation of liberty under the Convention in the cases under consideration here may apply virtually only subject to the requirements of Article 5.1 sentence 2 (e) of the European Convention on Human Rights (on the relationship of Article 5.1 sentence 2 (a) to Article 5.1 sentence 2 (e) of the European Convention on Human Rights see inter alia European Court of Human Rights, judgment of 5 November 1981, Application no. 7215/75, X. v. United Kingdom , marginal no. 39 and marginal nos. 46-47; judgment of 22 October 2009, Application no. 1431/03, Stojanovski v. Former Yugoslav Republic of Macedonia , marginal no. 30; judgment of 17 December 2009, Application no. 19359/04, M. v. Germany , marginal no. 103).

For this guarantee, insofar as it applies in the present case, the central element is “unsound mind”; according to the case-law of the European Court of Human Rights this presumes that it is a case of a “true mental disorder”, “warranting compulsory confinement” and which is continuing (“the validity of continued confinement must depend upon the persistence of such a disorder“) (for a basic analysis, see European Court of Human Rights, judgment of 24 October 1979, Application no. 6301/73, Winterwerp v. Netherlands , marginal no. 39; see most recently European Court of Human Rights, judgment of 21 June 2005, Application no. 517/02, Kolanis v. United Kingdom, marginal no. 67). There is no conclusive definition of the term “true mental disorder” (see European Court of Human Rights, judgment of 24 October 1979, Application no. 6301/73, Winterwerp v. Netherlands , marginal no. 37). Conduct which is merely socially deviant, however, is not a disorder within the meaning of this provision (see European Court of Human Rights, loc. cit., marginal no. 37). An anti-social personality or a psychopathic disorder may be included, however (see European Court of Human Rights, judgment of 20 February 2003, Application no. 50272/99, Hutchison Reid v. United Kingdom , marginal no. 19; see also Prior, Mentally disordered offenders and the European Court of Human Rights, International Journal of Law and Psychiatry 30 (2007), p. 546 <548>; Bartlett/Lewis/Thorold, Mental Disability and the European Convention on Human Rights , 2007, p. 43). In the consideration of the question as to whether the requirement of mental disorder within the meaning of Article 5.1 sentence 2 (e) of the European Convention on Human Rights and its continuation is satisfied, the Member States also have a margin of appreciation (see most recently European Court of Human Rights, judgment of 22 October 2009, Application no. 1431/03, Stojanovski v. Former Yugoslav Republic of Macedonia , marginal no. 34 with further references). The provision refers to national law (see Frowein/Peukert, Europäische Menschenrechtskonvention , 3rd ed. 2009, Art. 5 , marginal no. 76).

Article 5.1 sentence 2 (e) of the European Convention on Human Rights also requires that the statutory provisions of the relevant proceedings of imposition or review provide that a mental disorder be required as an express element of the offence (see European Court of Human Rights, judgment of the Fifth Section of 13 January 2011, Application no. 17792/07, Kallweit v. Germany , marginal no. 56).

Furthermore, the additional requirement of lawfulness of the deprivation of liberty contained in Article 5.1 sentence 2 (e) of the European Convention on Human Rights (on this, see most recently the detailed judgment of the seven-judge chamber of the European Court of Human Rights of 9 July 2009, Application no. 11364/03, Mooren v. Germany , marginal no. 72 with further references) must be taken into account; this serves to avoid arbitrariness and therefore in particular requires the deprivation of liberty to be foreseeable. The requirements of the prohibition of arbitrariness depend on the nature of the deprivation of liberty or the relevant ground of justification within the system of Article 5.1 of the European Convention on Human Rights (see European Court of Human Rights, loc. cit., marginal nos. 76-77; judgment of the seven-judge chamber of 29 January 2008, Application no. 13229/03, Saadi v. United Kingdom , Neue Zeitschrift für Verwaltungsrecht, NVwZ 2009, p. 375 <377>, marginal nos. 67 et seq.). According to this, the authoritative date to be considered for the foreseeability of deprivation of liberty under Article 5.1 sentence 2 (a) of the European Convention on Human Rights is in particular the date when the offence is committed, since the offence is the basis of the deprivation of liberty. In contrast, under Article 5.1 sentence 2 (e) of the European Convention on Human Rights – unlike, for example, in the case of Article 7 and Article 5.1 sentence 2 (a) of the European Convention on Human Rights – it is not a question of deprivation of liberty on account of an act committed in the past and a consequent conviction, but of deprivation of liberty on account of a present state (in this case a mental disorder, and the ensuing dangerousness for the general public) (see also Frowein/Peukert, Europäische Menschenrechtskonvention , 3rd ed. 2009, Art. 5 , marginal no. 76).

The requirement that the deprivation of liberty should be lawful also leads to the need for a connection between the purpose of the deprivation of liberty and the institution in which the person involved is accommodated (see, most recently, European Court of Human Rights, judgment of the seven-judge chamber of 29 January 2008, Application no. 13229/03, Saadi v. United Kingdom , marginal no. 69, end; European Court of Human Rights, judgment of 30 July 1998, Application no. 61/1997/845/1051, Aerts v. Belgium , marginal no. 46). The justification of deprivation of liberty under Article 5.1 sentence 2 (e) of the European Convention on Human Rights, therefore, requires not least that the person concerned is detained in a location and in circumstances which take account of the fact that the detainee is (inter alia ) detained by reason of a mental disorder (see, most recently, European Court of Human Rights, judgment of 13 January 2011, Application no. 17792/07, Kallweit v. Germany , marginal no. 46: “a hospital, clinic or other appropriate institution”).

c) Taking account of these principles and in consideration of the substantial encroachment upon the reliance of the detainees in preventive detention whose fundamental right under Article 2.2 sentence 2, Article 104.1 sentence 1 of the Basic Law is affected, the legitimate legislative purpose of the challenged provisions, protecting the general public against dangerous offenders, is largely outweighed by the constitutionally protected reliance on an end of preventive detention after a period of ten years (as in the old cases in the area of application of § 67d.3 sentence 1 in conjunction with § 2.6 of the Criminal Code) or on no order of preventive detention being made (as in the cases of retrospective preventive detention under § 66b.2 of the Criminal Code and § 7.2 of the Juvenile Court Act). A deprivation of liberty through preventive detention which is ordered or extended retrospectively can therefore only be regarded as proportionate if the required distance from punishment is observed, if a high risk of the most serious offences of violence or sexual offences can be inferred from specific circumstances in the person or conduct of the detainee (see also Federal Court of Justice, Order of 9 November 2010 – 5 StR 394/10, 440/10, 474/10 –, Neue Juristische Wochenschrift 2011, p. 240 <243>) and if the requirements of Article 5.1 sentence 2 (e) of the European Convention on Human Rights in the interpretation relied on here are satisfied. Only in such exceptional cases can a predominance of public safety interests still be assumed.

d) By this standard, § 67d.3 sentence 1 in conjunction with § 2.6 of the Criminal Code and § 66b.2 of the Criminal Code and § 7.2 of the Juvenile Court Act are incompatible with the rule-of-law requirement of the protection of legitimate expectations (aa). The provisions cannot be interpreted in such a way that they are still constitutional (bb).

aa) The provisions are incompatible with the rule-of-law requirement of the protection of legitimate expectations because the distance from punishment is not in general guaranteed (on the violation of the distance requirement, see under C.I.2. above) and the influence of Article 7 of the European Convention on Human Rights therefore reaches a degree which prohibits every retrospective application of the provisions. In addition, in their current versions the provisions do not ensure that only highly dangerous offenders, the deprivation of whose liberty is justified under Article 5.1 sentence 2 (e) of the European Convention on Human Rights, are covered.

bb) The provisions cannot be interpreted in such a way that they are still constitutional.

(1) In an interpretation in conformity with the Basic Law, the legislative content of a provision may not be redefined (see BVerfGE 8, 71 <78-79>). If an interpretation is to escape the provision being found void, therefore, it must be an interpretation based on generally accepted principles of interpretation (BVerfGE 69, 1 <55>). The limits of an interpretation in conformity with the Basic Law follow in principle from the correct use of the generally accepted methods of interpretation. In this process, respect of the legislative power makes it necessary, within the limits of the constitution, to uphold the maximum possible of what the legislature intended. This respect therefore requires an interpretation of the provision which is covered by the text of the statute and preserves the legislature’s fundamental objective (BVerfGE 86, 288 <320>). The interpretation may not lead to an essential point of the legislative purpose being missed or distorted (see BVerfGE 8, 28 <34>; 54, 277 <299-300> with further references; 78, 20 <24> with further references; 119, 247 <274>).

(2) Against this background, none of the provisions submitted for review can be interpreted in conformity with the Basic Law.

This applies not only to § 67d.3 sentence 1 of the Criminal Code, which in its very wording gives no points of reference for such an interpretation, but also to § 66b.2 of the Criminal Code and § 7.2 of the Juvenile Court Act. The latter provisions do, it is true, give the non-constitutional courts a scope of discretion with regard to the legal consequences, which is expressed in the formulation “may” (“ kann ”). However, this discretion exists only within the purpose of the authorisation for discretion. This means that the non-constitutional courts may in the individual case, even if the requirements are satisfied, refrain from a retrospective order of preventive detention if there are good reasons, but they may not in general fail to use the legal consequence intended by the legislature, that is, allow the provisions to have no effect whatsoever and in this way usurp the role of the legislature in making the fundamental decision as to whether retrospective preventive detention is to be completely abolished. It is for the legislature alone to lay down whether all detainees affected by the retrospectiveness problem are to be released or only those in whose case this is constitutionally imperative.

It is equally impossible, by interpreting the authority of discretion in conformity with the Basic Law, to reduce the existing statutory provisions to the part of them which is in conformity with the Basic Law. For at present the non-constitutional courts do not have the normative machinery necessary to create a situation in the law of preventive detention which is in conformity with the Basic Law. The constitutionality of retrospective preventive detention (§ 66b.2 of the Criminal Code and § 7.2 of the Juvenile Court Act) and of retrospective extension of preventive detention beyond the former ten-year maximum period (§ 67d.3 sentence 1 of the Criminal Code) requires extensive additional provisions to be passed – in particular the codification of the requirements to observe the distance requirement and of the requirements to establish the mental disorder within the meaning of Article 5.1 sentence 2 (e) of the European Convention on Human Rights – provisions which to date do not exist in the law of preventive detention. Only the legislature is in the position to legislate on the requirements subject to which further preventive detention is constitutionally permissible, and to do so exhausting its possibilities of drafting and in the necessary detail. In this connection, the legislature is in particular also free to replace preventive detention in whole or in part by committal to therapy, but it must interlink the area of application of this with the law of preventive detention in a way that leaves no doubt as to whether an area of application of the provisions under discussion in the present case is to remain or the provisions should be repealed.

For similar reasons, an interpretation of § 2.6 of the Criminal Code is also out of the question if it finds that Article 5 und Article 7 of the European Convention on Human Rights satisfy the requirement of “otherwise provided by law” within the meaning of this provision (see Federal Court of Justice, Order of 12 May 2010 – 4 StR 577/09 –, Neue Zeitschrift für Strafrecht, NStZ 2010, p. 567; Order of 18 January 2011 – 4 ARs 27/10 –, juris; Order of 17 February 2011 – 3 ARs 35/10 –; Frankfurt am Main Higher Regional Court, Order of 24 June 2010 – 3 Ws 485/10 –, NStZ 2010, p. 573; Hamm Higher Regional Court, Order of 6 July 2010 – 4 Ws 157/10 –, juris; Schleswig-Holstein Higher Regional Court , Order of 15 July 2010 – 1 OJs 3/10 and other nos. –, juris; Karlsruhe Higher Regional Court, Order of 15 July 2010 – 2 Ws 458/09 –, juris; Hamm Higher Regional Court, Order of 22 July 2010 – 4 Ws 180/10 –, juris; a different view is advanced in Federal Court of Justice, Order of 9 November 2010 – 5 StR 394/10, 440/10, 474/10 –, Neue Juristische Wochenschrift 2011, p. 240). It would be fundamentally contrary to the legislative concept to give priority, when interpreting § 2.6 of the Criminal Code, to the general provisions of Article 5 and Article 7 of the European Convention on Human Rights over the narrower provisions of the Criminal Code on preventive detention, which are unambiguous with regard to the question of retrospective effect. It was precisely these narrower provisions that the legislature had in mind when passing the legislation. The parliamentary background material to § 2.6 of the Criminal Code shows that the legislature from the outset saw no violation of Article 7 of the European Convention on Human Rights in § 2.6 of the Criminal Code (Bundestag printed paper IV/650, p. 108; a similar conclusion is reached by Stuttgart Higher Regional Court, Order of 1 June 2010 – 1 Ws 57/10 –, Recht und Politik , RuP 2010, p. 157). The legislature intended to “put into immediate force with unlimited retrospective effect” the revisions of § 67d of the Criminal Code introduced by the Act to Combat Sexual Offences and Other Dangerous Criminal Offences of 26 January 1998 (Federal Law Gazette I p. 160); this is shown by Article 1a.3 of the Introductory Act to the Criminal Code (see also Bundestag printed paper 13/9062, p. 12). In addition, the fiction that the decision of the European Court of Human Rights in an individual case is a national (parliamentary) statute violates the manner in which the European Convention on Human Rights takes effect nationally, which is laid down by the Basic Law, and also the principle of the separation of powers. The European Convention on Human Rights is not a statute, but an agreement under international law, which as such cannot directly intervene in the state legal system (see BVerfGE 111, 307 <322>). Even after the Act of assent is passed, it is still by its legal nature an agreement under international law whose national validity is effected only by the order of execution (see BVerfGE 90, 286 <364> and BVerfGE 104, 151 <209>; see also Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 8 June 2010 – 2 BvR 432/07, 2 BvR 507/08 –, juris, marginal no. 27). The decisions of the European Court of Human Rights in turn do not have the status of statute either; on the contrary, Article 46.1 of the European Convention on Human Rights only provides that the Contracting Party involved is bound by the final judgment with regard to a particular subject matter in dispute (“res judicata“, see BVerfGE 111, 307 <320>).

Nor do other provisions of the Convention support the view that it has an effect of binding precedent, extending beyond the individual case, on the courts of the Member States. In the European civil law tradition – unless an express provision such as § 31 of the Federal Constitutional Court Act provides otherwise – every court, within the limits of arbitrariness, is free at any time to interpret a provision differently than other courts have previously done (see only BVerfGE 78, 123 <126>; 84, 212 <227>; 87, 273 <278>; Müller/Christensen, Juristische Methodik , vol. I, 10th ed. 2009, marginal nos. 539-540; Alexy, Theorie der juristischen Argumentation , 1991, p. 334; Röhl/Röhl, Allgemeine Rechtslehre , 3rd ed. 2008, pp. 565 et seq.; see also Ress, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, ZaöRV 2009, p. 289 <293>). The same applies to the interpretation of the European Convention on Human Rights, even though the case-law of the European Court of Human Rights has particular importance in this connection, because it reflects the current state of development of the Convention and its Protocols (see BVerfGE 111, 307 <319>; see also Cremer, in: Grote/Marauhn, EMRK/GG, Konkordanzkommentar , 2006, ch. 32, marginal no. 90).

If, after all these considerations, the challenged provisions are incompatible with Article 2.2 sentence 2 in conjunction with Article 104.1 sentence 1 of the Basic Law for violation of the distance requirement, the same applies to all provisions on the imposition and duration of preventive detention and corresponding subsequent provisions, which are set out under number II.1. b) of the operative part of the judgment. In this respect, the requirements are satisfied for the Federal Constitutional Court under § 78 sentence 2 of the Federal Constitutional Court Act to extend its judicial pronouncement to further provisions of the same Act. The provision named is to be applied in the constitutional complaint proceedings with the necessary alterations (BVerfGE 18, 288 <300>; 40, 296 <328-329>; 91, 1 <25>; 92, 53 <73>; 94, 241 <265-266>; 98, 365 <401>; 104, 126 <150>; 110, 94 <140>).

All provisions affected by incompatibility with the Basic Law will continue in force, despite being unconstitutional, until the legislature reforms the law, and at the latest until 31 May 2013 (1.). Until then, however, they are to apply only in accordance with number III of the operative part of the judgment (2).

1. If a provision is not consistent with the Basic Law, it must as a matter of principle be declared void (§ 95.3 sentence 1, § 78 sentence 1 of the Federal Constitutional Court Act). But the situation is different in the cases in which declaring a provision void leads to a situation “which would be even less consistent with the constitutional order” (BVerfGE 116, 69 <93>), because a “legal vacuum” would be created (BVerfGE 37, 217 <260-261>) or gaps in the law would result in “chaos” (BVerfGE 73, 40 <42, 101-102>). Here, the Federal Constitutional Court generally declares the provisions incompatible and at the same time orders that the provisions in question are to continue in effect for a particular period of time.

In the present case, if the relevant provisions were declared void, this would mean that further preventive detention would lack a legal basis and the functioning of the existing two-track German system of measures of correction and prevention and penalties under criminal law would be disrupted with lasting effect. All persons committed to preventive detention would have to be released immediately, which would cause almost insoluble problems for the courts, the administration and the police. The consideration of consequences must also include all potential detainees under preventive detention in the case of whom committal to preventive detention has been ordered, but who are still serving custodial sentences and who could not begin preventive detention despite the fact that they may be highly dangerous.

With regard to the extent of the measures which are necessary to put the distance requirement into practice (see under C.I.2. above), the order that the legislation is to continue in effect must apply for two years, in order that the necessary overall concept may be developed, the necessary additional personnel provided and the measures necessary for spatial separation of the execution of measures of correction and prevention and the execution of prison sentences can be carried out.

2. In view of the encroachment upon fundamental rights associated with preventive detention – which is unconstitutional – it is necessary to create a transitional arrangement for the period until there is a detailed statutory reform; this transitional arrangement must admittedly permit the existing provisions to continue in effect, to avoid a legal vacuum, and the pending review proceedings to be continued (see BVerfGE 73, 40 <101-102> with further references), but must ensure that minimum constitutional requirements are complied with. During the period when the current provisions continue in effect, therefore, the existing provisions must be applied subject to the conditions set out under number III of the operative part of the judgment (§ 35 of the Federal Constitutional Court Act).

a) With regard to the provisions which are incompatible with the Basic Law only by reason of a violation of the distance requirement (see number II.1. and number III.1. of the operative part of the judgment), during the period while they continue in application the law must be applied taking into account the fact that preventive detention in its present form is an unconstitutional encroachment upon the fundamental right to liberty under Article 2.2 sentence 2 in conjunction with Article 104.1 of the Basic Law. The high value of the fundamental right to liberty limits the spectrum of encroachment permitted in the transitional period. During the transitional period, encroachments may extend only as far as they are indispensable in order to uphold the order of the area of life affected. Here, if applicable, care should be taken to interpret the content of the legislation in conformity with the Basic Law (see BVerfGE 109, 190 <239> with further references). The provisions may only be applied in compliance with a strict review of proportionality (see BVerfGE 109, 190 <240>). This applies in particular with regard to the requirements of the prognosis of dangerousness and the legal interests endangered. In general, the principle of proportionality will only be satisfied on condition that a high risk of the most serious offences of violence or sexual offences can be inferred from specific circumstances in the person or the conduct of the detainee.

b) With regard to the provisions which are incompatible with the requirement of the protection of legitimate expectations (number II.2. of the operative part of the judgment), the provisions which temporarily continue in effect must be applied in a manner that is modified in accordance with number III.2. of the operative part of the judgment. In view of the fact that it is primarily for the legislature to determine the conditions of a mental disorder within the meaning of Article 5.1 sentence 2 (e) of the European Convention on Human Rights (see most recently European Court of Human Rights, judgment of 13 January 2011, Application no. 17792/07, Kallweit v. Germany , marginal no. 55), in this connection recourse must be made to the Act on the Therapy and Committal of Mentally Disordered Violent Criminals, which entered into force on 1 January 2011. In this Act, the legislature, deviating from the previous legal position, in which the only distinction was between committing dangerous offenders to a prison for the purpose of prevention on the one hand and committing mentally disordered persons who had committed offences in a state of lack of criminal responsibility or reduced criminal responsibility (§§ 20, 21, 63 of the Criminal Code) on the other hand, for the first time put into concrete terms the requirements of Article 5.1 sentence 2 (e) of the European Convention on Human Rights and created a further form of confinement for mentally disordered persons who are dangerous to the general public, who are found in the course of the proceedings to have a mental disorder and whose detention is then executed not in a prison but in a therapeutic institution. In the present context, the Therapeutic Committal Act is not to be subjected to a constitutional review. However, with regard to the conception developed in the Act, it may be assumed that the German legislature in this Act intended to create a further category for the confinement of mentally disordered persons with a danger potential indicated by their offences which is not based on criminal responsibility at the past date when the offences were committed, but to the present (permanent) mental state of the persons in question and their future dangerousness resulting from this (see also the statement in support of the bill of the CDU/CSU parliamentary group, Bundestag printed paper 17/3403, pp. 53-54). The transitional arrangement in number III of the operative part of the judgment takes account, as far as is possible and necessary, of this concern of the legislature.

The various decisions challenged violate the rights of the complainants under Article 2.2 sentence 2, Article 104 and Article 2.2 in conjunction with Article 20.3 of the Basic Law. They are therefore reversed and the matters are referred back for a new decision (§ 95.2 of the Federal Constitutional Court Act) […].

The challenged decisions are based on the unconstitutional provisions. […]

2. In their new decisions, the competent courts will have to give consideration in particular to the degree of dangerousness of the complainant in each case and to decide whether against this background the review of a relevant mental disorder appears at all necessary. Only as a last step will it be necessary to ask whether such a mental disorder exists. In particular in the case of the first complainant, there are considerable doubts from the outset as to the existence of a relevant mental disorder, in view of the possibilities of recidivism mentioned in the expert report of Prof. N., the triviality of the originating offences (thefts) and the long period of time that has passed since the originating offence of rape, which indicated the complainant’s symptoms, in the year 1978. […] In other respects, the non-constitutional courts will also have to fathom the possibilities of supervision of conduct and to consider whether and to what extent the degree of dangerousness of the respective complainant may be reduced through this.

The decision on the reimbursement of expenses is based on § 34a.2 and 34a.3 of the Federal Constitutional Court Act (see BVerfGE 101, 106 <132>; 104, 357 <358>; 105, 135 <136>).

The decision was unanimous with regard to the operative part on II.2 and IV., and passed by seven votes to one apart from this.

Voßkuhle

Di Fabio

Mellinghoff

Lübbe-Wolff

Gerhardt

Landau

Huber

Hermanns

The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

Precautionary storage of telecommunications traffic data without cause for six months by private service providers as provided by Directive 2006/24/EC of the European Parliament and the Council of 15 March 2006 (OJ L 105 of 13 April 2006, p. 54; hereinafter: Directive 2006/24/EC) is not in itself incompatible with Article 10 of the Basic Law (Grundgesetz – GG); any potential priority of the Directive is therefore not relevant to the decision.

The principle of proportionality requires the formulation of the legislation on such storage to take appropriate account of the particular weight of the encroachment upon fundamental rights constituted by the storage. Sufficiently sophisticated and well-defined provisions are required with regard to data security, to the use of the data, to transparency and to legal protection.

The guarantee of data security and the restriction of the possible use of the data, in well-defined provisions, are, as inseparable elements of legislation creating a duty of data storage, the responsibility of the Federal legislature, under Article 73.1 no. 7 of the Basic Law. In contrast, the responsibility for creating the retrieval provisions themselves and for drafting the provisions on transparency and legal protection depends on the legislative competence for the respective subject-matter.

With regard to data security, there is a need for statutory provisions which lay down a particularly high security standard in a well-defined and legally binding manner. It must be ensured by statute, at all events fundamentally, that this standard is oriented to the state of development of the discussion between specialists, constantly absorbs new knowledge and insights and is not subject to a free weighing of interests against general business considerations.

The retrieval and the direct use of the data are only proportionate if they serve overridingly important tasks of the protection of legal interests. In the area of the prosecution of criminal offences, this requires the suspicion of a serious criminal offence based on specific facts. For warding off danger and for performing the duties of the intelligence services, they may only be permitted if there is actual evidence of a concrete danger to the life, limb or freedom of a person, to the existence or the security of the Federation or of a Land or to ward off a danger to public safety.

A merely indirect use of the data by the telecommunications service providers to issue information with regard to the owners of Internet Protocol addresses is permissible, even independent of restrictive lists of legal interests or criminal offences, for the prosecution of criminal offences, for warding off danger and for carrying out intelligence-services duties. For the prosecution of regulatory offences, such information can only be allowed to be given in cases of particular weight expressly named by the legislature.

Pronounced

on 2 March 2010

Kehrwecker

Amtsinspektor

Registrar

of the Court Registry

FEDERAL CONSTITUTIONAL COURT

– 1 BvR 256/08 –

– 1 BvR 263/08 –

– 1 BvR 586/08 –

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

I.

1.

of Prof. Dr. G…,

2.

of Dr. G…,

3.

of Mr. K…,

4.

of J… GmbH,
represented by its managing director,

5.

of Mr. U…,

6.

of Mr. R…,

7.

of Mr. Z…,

8.

of Dr. B…,

– authorised representative:

Mr. Meinhard Starostik, lawyer
Schillstraße 9, 10785 Berlin –

against

§§ 113a and 113b of the Telecommunications Act (Telekommunikationsgesetz – TKG ) as amended by the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC (Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG) of 21 December 2007 (Federal Law Gazette (Bundesgesetzblatt – BGBl) I 2007, p. 3198)

the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette I p. 3198)

– 1 BvR 263/08 –,

III.

1.

of Ms A…,

2.

of Ms B…,

3.

of Mr. B…,

4.

of Ms B…,

5.

of Ms B…,

6.

of Mr. B…,

7.

of Mr. D…,

8.

of Dr. D…,

9.

of Dr. E…,

10.

of Mr. F…,

11.

of Mr. G…,

12.

of Ms G…,

13.

of Ms H…,

14.

of Ms H…,

15.

of Ms H…,

16.

of Mr. H…,

17.

of Mr. H…,

18.

of Mr. W…,

19.

of Mr. W…,

20.

of Mr. T…,

21.

of Dr. T…,

22.

of Mr. S…,

23.

of Dr. S…,

24.

of Ms S…,

25.

of Ms S…,

26.

of Ms S…,

27.

of Ms S…,

28.

of Ms P…,

29.

of Mr. N…,

30.

of Mr. N…,

31.

of Ms M…,

32.

of Mr. M…,

33.

of Ms M…,

34.

of Ms L…,

35.

of Ms K…,

36.

of Mr. K…,

37.

of Mr. K…,

38.

of Ms K…,

39.

of Ms K…,

40.

of Dr. H…,

41.

of Ms H…,

42.

of Ms H…,

43.

of Ms H…,

– authorised representative:

Prof. Dr. Jens-Peter Schneider,
Lürmannstraße 10, 49076 Osnabrück –

against

the provisions on data retention in the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette I p. 3198)

– 1 BvR 586/08 –

the First Senate of the Federal Constitutional Court,

with the participation of

Justices Papier (President),

Hohmann-Dennhardt,

Bryde,

Gaier,

Eichberger,

Schluckebier,

Kirchhof, and

Masing

issued the following

Judgment on the basis of the oral hearing of 15 December 2009:

§§ 113a and 113b of the Telecommunications Act as amended by the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette part I 2007, p. 3198) infringe Article 10 subsection 1 of the Basic Law and are hence void.

§ 100g subsection 1 sentence 1 of the Code of Criminal Procedure (Strafprozessordnung – StPO) as amended by Article 1 number 11 of the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette part I page 3198) infringes Article 10 subsection 1 of the Basic Law to the extent that it permits the collection of traffic data stored pursuant to § 113a of the Telecommunications Act and is void to that extent.

The telecommunications traffic data collected on the basis of the temporary injunction issued on 11 March 2008 in the proceedings 1 BvR 256/08 (Federal Law Gazette part I page 659), repeated and extended by an order of 28 October 2008 (Federal Law Gazette part I page 2239), last repeated by an order of 15 October 2009 (Federal Law Gazette part I page 3704) by providers of publicly available telecommunications services under requests for information made by competent authorities, but provisionally not transmitted to the requesting authorities, which are stored, must be deleted without delay. They may not be transmitted to the requesting agencies.

The Federal Republic of Germany is ordered to reimburse the complainants their necessary costs in the constitutional complaint proceedings.

Reasons:

A.

1

The subject-matter of the constitutional complaints are provisions of the Telecommunications Act (hereinafter: TKG) and of the Code of Criminal Procedure (hereinafter: StPO) that provide a precautionary storage for six months of telecommunications traffic data by the providers of publicly available telecommunications services and the use of such data.

I.

2

The challenged provisions were inserted or amended by the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette I p. 3198; hereinafter: Act for the Amendment of Telecommunications Surveillance (Gesetz zur Neuregelung der Telekommunikationsüberwachung )); pursuant to its Article 16.1, they have entered into force on 1 January 2008. They serve to implement Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ L 105 of 13 April 2006, p. 54; hereinafter: Directive 2006/24/EC).

3

1. All constitutional complaints directly challenge §§ 113a and 113b TKG, which have been inserted into the Telecommunications Act by Article 2 no. 6 of the Act for the Amendment of Telecommunications Surveillance. Apart from this, the constitutional complaints in the proceedings 1 BvR 263/08 and 1 BvR 586/08 directly challenge § 100g StPO as amended by Article 1 no. 11 of the Act for the Amendment of Telecommunications Surveillance to the extent that it permits the collection of data stored pursuant to § 113a TKG.

4

a) § 113a TKG aims, with regard to all publicly available telecommunications services, at storing, for six months, traffic data which provide information on the lines involved in a telecommunications connection and about the time and the locations at which an act of telecommunication has taken place and to keep them available for the state’s performance of its duties. In doing so, the Act takes up demands which had been made by the Bundesrat for an extended period of time (see Bundestag printed paper (Bundestagsdrucksache – BTDrucks) 14/9801, p. 8; Bundesrat printed paper (Bundesratsdrucksache – BRDrucks 755/03 (resolution), p. 33 et seq.; BRDrucks 406/1/04; BRDrucks 406/04 (resolution); BRDrucks 723/05 (resolution), p. 1), with which the German Bundestag concurred in 2006, making reference to the respective initiatives on the European level. The German Bundestag requested the Federal Government to approve the draft Directive 2006/24/EC and to immediately submit a draft of an implementing Act (see Bundestag printed papers 16/545, p. 4; 16/690, p. 2; Minutes of plenary proceedings of the Bundestag (BTPlenarprotokoll) 16/19, p. 1430). The Federal Government complied with the request by submitting the draft Act for the Amendment of Telecommunications Surveillance (see Bundestag printed paper 16/5846).

5

§ 113a.1 sentence 1 TKG obliges the of publicly available telecommunications services to store, for a period of six months, the telecommunications service data listed in § 113a.2 to 113a.5 regarding fixed network, internet and mobile communications, the transmission of text, multi-media and similar messages, email connections and Internet access. According to § 113a.1 sentence 2 TKG, a person who provides such services without himself creating traffic data shall ensure that the data are stored, and shall inform the Federal Network Agency (Bundesnetzagentur ) as to who is storing these data. Apart from this, a person who provides telecommunications services and in doing so alters the information to be stored pursuant to § 113a TKG is obliged to store the original and the new information. According to § 113a.11 TKG, the data are to be deleted within one month after the end of the storage period. Pursuant to § 113a.8 TKG, the contents of the communication and data on Internet sites visited may not be stored. As regards data security, § 113a.10 TKG makes reference to the care necessary in the area of telecommunications and demands that access to the stored data be exclusively possible to persons specifically authorised for this purpose.

6

Apart from data storage according to § 113a TKG, the providers of telecommunications services retain, pursuant to § 96 TKG, the possibility of storing and using telecommunications data to the extent necessary for the purposes specified therein. After the end of a telecommunications connection, these data may essentially be used pursuant to § 96.2 sentence 1 to the extent that this is necessary for charging and invoicing the parties (§ 97.1 sentence 1 TKG), for itemised billing (§ 99.1 sentence 1 TKG), to the extent necessary for recognising, locating or eliminating faults or deficiencies of telecommunications equipment (§ 100.1 TKG), and to give information about the owners of lines from which threatening or malicious calls have been made (§ 101.1 sentence 1 TKG).

7

§ 113a TKG reads as follows:

9

§ 113a

Duties to store data

10

(1) A person who provides publicly available telecommunications services for end users shall store traffic data produced or processed by him in the use of his service pursuant to subsections 2 to 5 for six months in Germany or in another Member State of the European Union. A person who provides publicly available telecommunications services for end users without himself creating or processing traffic data shall ensure that the data are stored pursuant to sentence 1 above, and shall inform the Federal Network Agency at its request as to who is storing these data.

11

(2) The providers of publicly available telephone services store:

12

1. the telephone number or other identification of the calling and called line, and in the case of call transfer or forwarding of every additional line involved,

13

2. the beginning and the end of the connection, with date and time and stating the relevant time zone,

14

3. in cases in which different services may be used as part of the telephone service, information on the service used,

15

4. in the case of mobile telephone services in addition:

16

a) the International Mobile Subscriber Identities of the calling and called lines,

17

b) the International Mobile Equipment Identity of the calling and called terminal device,

18

c) the identification of the radio cells used by the calling and the called lines at the beginning of the connection,

19

d) in the case of prepaid anonymous services, in addition the initial activation of the service, with date, time and identity of the radio cell,

20

5. in the case of Internet telephone services, in addition the Internet Protocol address of the calling and the called lines.

21

Sentence 1 applies with the necessary modifications to the transmission of a text, multi-media or similar message; in this case, in place of the information under sentence 1 no. 2, the times of the sending and the receipt of the message shall be stored.

22

(3) The providers of electronic mail services store:

23

1. when a message is sent, the identity of the electronic mailbox, the Internet Protocol address of the sender and the identity of the electronic mailbox of every receiver of the message,

24

2. when a message is received in an electronic mailbox, the identity of the electronic mailboxes of the sender and the receiver of the message and the Internet Protocol address of the sending telecommunications equipment,

25

3. in the event of access to the electronic mailbox, the identification of the mailbox and the Internet Protocol address of the person retrieving,

26

4. the points of time of the uses of the service set out in nos. 1 to 3 above with date and time, stating the relevant time zone.

27

(4) The providers of Internet access services store:

28

1. the Internet Protocol address allocated to the subscriber for use of the Internet,

29

2. a clear identification of the access line through which the use of the Internet is made,

30

3. the beginning and the end of the use of the Internet from the allocated Internet Protocol address with date and time, stating the relevant time zone.

31

(5) To the extent that providers of telephone services store or record the traffic data named in the present provision for the purposes set out in § 96.2 even if the call is not answered or is unsuccessful as the result of a network management intervention, the traffic data shall also be stored pursuant to the present provision.

32

(6) A person who provides telecommunications services and in doing so alters the information to be stored pursuant to the present provision shall store the original and the new information and the time of the alteration of this information with date and time, stating the relevant time zone.

33

(7) A person who operates a mobile telephone network for the public shall also retain, in addition to the identities of the radio cells stored pursuant to the present provision, data which reveal the geographic locations of the radio antennae supplying each radio cell and their main beam direction.

34

(8) The contents of the communication and data on Internet sites visited may not be stored under the present provision.

35

(9) The storage of the data under subsections 1 to 7 above shall be effected in such a way that requests for information made by the agencies entitled may be responded to without delay.

36

(10) The provider with obligations under the present provision shall observe the care necessary in the area of telecommunications with regard to the quality and the protection of the traffic data stored. In this connection it must ensure by technical and organisational measures that access to the stored data is exclusively possible to persons specifically authorised by it for this purpose.

37

(11) The provider with obligations under the present provision shall delete or ensure the deletion of the data stored solely pursuant to the present provision within one month after the end of the period stated in subsection 1.

38

b) § 113b TKG sets out the purposes for which the data stored pursuant to § 113a TKG may be used. In doing so, it distinguishes between transmission to authorities in order to make it possible for them to use the data to perform their duties, and use by the telecommunications service providers themselves in order to give information pursuant to § 113 TKG, in particular about the owners of Internet lines.

39

aa) § 113b sentence 1 half-sentence 1 TKG sets out the purposes for which the telecommunications enterprises may transmit the data to public authorities. The prerequisites under which such authorities, for their part, may use the data are intended to be provided in provisions under Federal or Land (state) law of the respective area of non-constitutional law. § 113b sentence 1 half-sentence 1 TKG provides that the provider obliged to store data may transmit the data stored solely pursuant to the duty of retention under § 113a to the competent agencies exclusively for the prosecution of criminal offences (no. 1), to ward off substantial dangers to public security (no. 2) and to perform intelligence-service duties (no. 3).

40

Pursuant to § 113b sentence 1 half-sentence 1 TKG, data may be transmitted to the respective competent authorities at their request only if this is explicitly provided in the relevant statutory provisions of non-constitutional law referring to § 113a and the transmission has been ordered in the individual case.

41

The basis under non-constitutional law for the authorisation to use the data stored pursuant to § 113a TKG for the prosecution of criminal offences is § 100g StPO, which is challenged in the proceedings 1 BvR 263/08 and 1 BvR 586/08. As regards the warding off of dangers and the intelligence services’ performance of their duties, § 20m of the Federal Criminal Police Office Act (Bundeskriminalamtgesetz , hereinafter: BKAG) as amended by the Act on Prevention by the Federal Criminal Police Office of Threats from International Terrorism (Gesetz zur Abwehr von Gefahren des internationalen Terrorismus durch das Bundeskriminalamt ) of 25 December 2008 (Federal Law Gazette I p. 3083) and various provisions under Land law meanwhile make reference to § 113a TKG and thus make it possible for the competent authorities to avail themselves of the data stored according to this provision.

42

However, it was possible even before the entry into force of § 113a TKG to consult telecommunications traffic data stored in a permissible manner for the prosecution of criminal offences, to ward off danger or to perform intelligence-service duties. For example, § 100g.1 StPO as amended by Article 1 of the Act Amending the Code of Criminal Procedure (Gesetz zur Änderung der Strafprozessordnung ) of 20 December 2001 (Federal Law Gazette I p. 3879; hereinafter: § 100g StPO, old version) provided for an obligation of the service providers to give information on telecommunications connection data, on the basis of a judicial order, where there was a suspicion of a criminal offence of substantial importance or of a criminal offence committed by means of a telecommunications terminal device. In the same manner, for example Article 34b.2 no. 1 of the Act on the Duties and Competences of the Bavarian State Police (Gesetz über die Aufgaben und Befugnisse der Bayerischen Staatlichen Polizei (Bavarian Police Duties Act – Polizeiaufgabengesetz ; hereinafter: BayPAG)) as amended by the Act Amending the Bavarian Police Duties Act and the Parliamentary Control Panel Act (Gesetz zur Änderung des Polizeiaufgabengesetzes und des Parlamentarischen Kontrollgremium-Gesetzes ) of 24 December 2005 (Bavarian Law and Ordinance Gazette (GVBl) p. 641) or § 8a.1 sentence 1 no. 4 of the Act Regulating the Cooperation between the Federation and the Federal States in Matters Relating to the Protection of the Constitution and on the Federal Office for the Protection of the Constitution (Gesetz über die Zusammenarbeit des Bundes und der Länder in Angelegenheiten des Verfassungsschutzes und über das Bundesamt für Verfassungsschutz (Federal Act on Protection of the Constitution –Bundesverfassungsschutzgesetz ; hereinafter: BVerfSchG) as amended by the Act Amending the Counter Terrorism Act (Gesetz zur Ergänzung des Terrorismusbekämpfungsgesetzes ) of 5 January 2007 (Federal Law Gazette I p. 2) provided authorisations to retrieve information on existing telecommunications connection data to ward off danger or to perform duties of the authority for the protection of the constitution.

43

bb) It is true that § 113b.1 half-sentence 2 TKG excludes, in principle, the use of the data stored pursuant to § 113a TKG for other purposes than those mentioned in § 113b sentence 1 half-sentence 1 TKG. However, it admits of an exception to the effect that they may also be used by the service providers to give information pursuant to § 113 TKG.

44

§ 113.1 TKG permits authorities to retrieve what is known as customer and contract data pursuant to §§ 95 and 111 TKG, in particular of telephone numbers, line identifications and names and addresses of line owners. § 113b 1 half-sentence 2 TKG thus makes it possible for the service providers to give information concerning the owners of what is known as “dynamic” Internet protocol addresses (hereinafter: IP addresses). According to the present state of development, IP addresses are, as a general rule, not permanently assigned to a line as so-called “static” IP addresses but are only assigned to the respective Internet user as dynamic IP addresses for the duration of the respective access to the Internet. Information about the owner of a line from which a particular dynamic IP address has been used at a particular point in time can therefore only be given if the traffic data can be evaluated which provide information about the line to which the IP address in question was assigned at the material time. This is made possible by § 113b sentence 1 half-sentence 2 TKG with regard to the data stored according to § 113a TKG.

The identification of the owner of an IP address is of significance for example for copyright protection. If the copyright owners succeed in identifying the IP addresses under which copyright violations are committed in the Internet, the criminal prosecution authorities can identify, by means of a request for information pursuant to § 113.1 TKG, the owners of the respective lines, against whom the copyright owners can bring civil action after inspecting the files of the criminal proceedings. It is true that § 101.2 sentence 1 no. 3 of the Copyright Act (Urheberrechtsgesetz – UrhG) as amended by Article 6 no. 10 of the Law on the Improved Enforcement of Intellectual Property Rights (Gesetz zur Verbesserung der Durchsetzung von Rechten des geistigen Eigentums ) of 7 July 2008 (Federal Law Gazette I p. 1191) now grants persons whose copyright has been violated also a civil-law right to information vis-à-vis the telecommunications service providers. Pursuant to § 101.9 of the Copyright Act, the latter may give the information on the basis of a court order also by using telecommunications traffic data. It is, however, excluded to use the data stored pursuant to § 113a TKG (see Frankfurt am Main Higher Regional Court, order of 12 May 2009 – 11 W 21/09 –, MMR 2009, p. 542 (544), with further references; Hoeren, Neue Juristische Wochenschrift 2008, p. 3099 (3101); Bäcker, in: Rensen/Brink, Linien der Rechtsprechung des Bundesverfassungsgerichts , 2009, p. 99 (111-112), footnote 49).

47

Information pursuant to § 113.1 sentence 1 TKG is to be given to the extent necessary for prosecuting criminal or regulatory offences, to ward off dangers to public security or public order or for performing intelligence-service duties.

cc) § 113b TKG reads:

50

§ 113b

Use of the data stored pursuant to § 113a

51

The provider with obligations under § 113a may transmit the data stored solely pursuant to the duty of retention under § 113a

52

1. for the prosecution of criminal offences,

53

2. to ward off substantial dangers to public security, or

54

3. to perform the statutory duties of the authorities of the Federation and the Länder (states) for the protection of the constitution, of the Federal Intelligence Service (Bundesnachrichtendienst ) and of the Military Counterintelligence Service (Militärischer Abschirmdienst )

56

to the competent agencies at their request, to the extent that this is provided for in the relevant statutory provisions referring to § 113a and the transmission has been ordered in the individual case; it may not use the data for other purposes, with the exception of giving information pursuant to § 113. § 113.1 sentence 4 applies with the necessary modifications.

The provision of § 113 TKG to which § 113b TKG makes reference reads in part:

57

§ 113

58

Preparation by hand of information

59

(1) Any person who, in a business capacity, provides telecommunications services or assists in providing such services shall in the individual case give, without delay, information to the competent agencies at their request about the data collected pursuant to §§ 95 and 111 to the extent that this is necessary for the prosecution of criminal or regulatory offences, to ward off dangers to public security or order or to perform the statutory duties of the authorities of the Federation and the Länder for the protection of the constitution, of the Federal Intelligence Service and of the Military Counterintelligence Service. The person obliged to give information pursuant to sentence 1 shall give information about data which protect the access to terminal devices or to storage systems employed in such devices or in the network, in particular PINs or PUKs, on the basis of a request for information made pursuant to § 161.1 sentence 1, § 163.1 of the Code of Criminal Procedure, to the provisions on data collection of the police laws of the Federation or of the Länder to ward off dangers to public security or order, to § 8.1 of the Federal Act on Protection of the Constitution, to the relevant provisions of the Land Acts on Protection of the Constitution, to § 2.1 of the Federal Intelligence Service Act or § 4.1 of the Military Counterintelligence Service Act; these data may not be transmitted to other public or non-public agencies. Access to data which are subject to the secrecy of telecommunications is only possible under the prerequisites of the statutory provisions which are relevant in this respect. The person obliged to give information shall observe secrecy about the provision of information towards his customers and towards third parties.

60

(2) …

61

c) § 100g.1 sentence 1 StPO provides for the collection of telecommunications data for purposes of the prosecution of criminal offences. According to the provision, the criminal prosecution authorities can in the first instance access traffic data which the telecommunications enterprises have stored on the basis of § 96 TKG; this was already possible according to § 100g StPO, old version. Apart from this, § 100g StPO now also permits the collection of the data stored by way of precaution pursuant to § 113a TKG. This is challenged by the constitutional complaints in the proceedings 1 BvR 263/08 and 1 BvR 586/08.

62

In detail, § 100g.1 sentence 1 StPO permits the criminal prosecution authorities, with reference to § 113a TKG to collect traffic data without the knowledge of the person concerned to the extent that this is necessary for the investigation of the facts or the establishment of the whereabouts of the suspect. This, however, only applies if specific facts create the suspicion that a person, as perpetrator or accessory, has committed a criminal offence that even in an individual case is of substantial importance, in particular a criminal offence listed in § 100a.2 StPO, or has committed a criminal offence preparatory thereto or, as perpetrator or accessory, has committed an offence by means of telecommunications.

63

Pursuant to § 100g.2 sentence 1 in conjunction with § 100b.1 sentences 1 and 2 StPO, the data collections may only be ordered by a judge unless in case of imminent danger. According to § 100g.2 sentence 1 in conjunction with § 100a.3 StPO, the order may only be directed against the accused or against persons of whom it must be assumed due to specific facts that they receive or transmit specific messages directed to the accused or originating from him or that the accused uses their line.

64

In case of offences committed by means of telecommunications, the collection of traffic data is, pursuant to § 100g.1 sentence 3 StPO, permissible only if the investigation of the facts or the establishment of the whereabouts of the suspect would be impossible in another way and the collection of the data is in a reasonable proportion to the importance of the matter. The legislature regarded this restriction as necessary for reasons of proportionality because it took the view that all in all, the intensity of the encroachment resulting from the collection of traffic data had increased due to the expansion of the data volume in connection with the obligation to store data pursuant to § 113a TKG (see Bundestag printed paper 16/5846, p. 52).

65

Pursuant to § 101.4 sentence 1 StPO, the person affected by measures according to § 100g.1 sentence 1 StPO shall be notified of them. The person affected may apply for the judicial review of such measures within two weeks following their notification (§ 101.7 sentence 2 StPO). In certain cases, notification may be dispensed with (§ 101.4 StPO), in other cases it may be deferred (§ 101.5 StPO). Unlike the dispensation of notification pursuant to § 101.4 StPO, a long-term deferral according to § 101.5 StPO requires the approval of the court.

66

§ 100g StPO reads as follows:

67

§ 100g

68

(1) If specific facts create the suspicion that a person, as perpetrator or accessory,

69

1. has committed a criminal offence that even in an individual case is of substantial importance, in particular a criminal offence listed in § 100a.2 above, or, in cases in which attempt constitutes an offence, has attempted to commit such an offence, or has committed a criminal offence preparatory thereto or

70

2. has committed an offence by means of telecommunications,

71

then, even without the knowledge of the person concerned, traffic data (§ 96.1 and § 113a of the Telecommunications Act) may be collected to the extent that this is necessary for the investigation of the facts or the establishment of the whereabouts of the suspect. In the case of sentence 1 no. 2, the measure is permissible only if the investigation of the facts or the establishment of the whereabouts of the suspect would be impossible in another way and the collection of the data is in a reasonable proportion to the importance of the matter. The collection of location data in real time is permissible only in the case of sentence 1 no. 1.

72

(2) § 100a.3 and § 100b.1 to § 100b.4 sentence 1 apply with the necessary modifications. Notwithstanding § 100b.2 sentence 2 no. 2, in the case of a criminal offence of substantial importance it is sufficient to adequately determine the place and time of the telecommunications if the investigation of the facts or the establishment of the whereabouts of the suspect in another way would be impossible or considerably more difficult.

73

(3) If the collection of traffic data is not made on the responsibility of the telecommunications service provider, then after the end of the communications process it is governed by the general provisions.

74

(4) In accordance with § 100b.5, a summary of measures under subsection 1 shall be prepared annually; this shall state:

75

1. the number of proceedings in which measures under subsection 1 have been taken;

76

2. the number of orders for measures under subsection 1, classified according to original orders and renewal orders;

77

3. the criminal offence that occasioned the order in each case, classified according to subsection 1 sentence 1 nos. 1 and 2;

78

4. the number of past months for which the traffic data under subsection 1 was requested, starting at the time when the order was made;

79

5. the number of measures that have produced no results because the data retrieved were in whole or in part not available.

80

2. Directive 2006/24/EC of the European Parliament and of the Council, whose implementation the challenged provisions serve to the extent that they concern the prosecution of criminal offences, was adopted by the Council on the basis of Article 95 EC against the votes of Ireland and Slovakia (see Council document 6598/06 ADD 1 of 27 February 2006, p. 4), after the European Parliament had rejected an initiative for a Draft Framework Decision (see Council document 8958/04 of 28 April 2004) by the French Republic, Ireland, Sweden and Great Britain on the retention of telecommunications data which relied on Article 31.1 letter c and Article 34.2 letter b of the Treaty on European Union in its version applicable until the entry into force of the Treaty of Lisbon (hereinafter: Treaty on European Union, old version) (see European Parliament document P 6 TA[2005]0348).

81

a) The Directive takes up the considerations that telecommunications traffic data are a valuable tool in the prosecution of criminal offences, in particular in the areas of organised crime and terrorism (see Recitals 7 to 10 of Directive 2006/24/EC) and that several Member States have adopted legislation providing for the retention of such data whose provisions vary considerably (see Recital 5 of Directive 2006/24/EC). It works on the assumption that the legal and technical differences created thereby present obstacles to the internal market for electronic telecommunications, since service providers are faced with different requirements regarding the types of data to be retained and the periods of retention (see Recital 6 of Directive 2006/24/EC).

By its judgment of 10 February 2009, the Court of Justice of the European Communities rejected an action for annulment under Article 230 EC brought by Ireland (see ECJ, judgment of 10 February 2009 – Case C-301/06 –), which relied on the main or predominant purpose of the Directive being to facilitate the prosecution of criminal offences and its only permissible legal base therefore being the provisions of the EC Treaty, old version, on police and judicial cooperation, which require unanimity, in particular Article 30, Article 31.1 letter c and Article 34.2 letter b of the EC Treaty, old version (see action of 6 July 2006 – Case C-301/06 –, OJ C 237 of 30 September 2006, p. 5). In its judgment, the Court of Justice explicitly stated that the action did not relate to any possible infringement of fundamental rights of the Community (see ECJ, judgment of 10 February 2009 – Case C-301/06 –, marginal no. 57).

84

c) According to Article 1.1 of Directive 2006/24/EC, the Directive aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of telecommunications data, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. On the occasion of the adoption of the Directive, the Council declared that in defining “serious crime”, the Member States shall have due regard to the crimes listed in Article 2.2 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JI) (OJ L 190 of 18 July 2002, p. 1) and crime involving telecommunication (see Council document 6598/06 ADD 1, p. 4). The Directive does not contain provisions on the use of the data for duties involving the warding off of dangers or intelligence-service duties.

85

Pursuant to Article 3.1 of Directive 2006/24/EC, Member States shall ensure that the data specified in Article 5 of Directive 2006/24/EC are retained; according to Article 6 of Directive 2006/24/EC, periods of not less than six months and not more than two years from the date of the communication are to be set down. Pursuant to Article 4 of Directive 2006/24/EC, Member States shall ensure that the data retained are provided only to the competent national authorities in specific cases and in accordance with national law. The procedures to be followed and the conditions to be fulfilled in order to gain access to retained data in accordance with necessity and proportionality requirements shall be defined by each Member State.

86

Article 7 of Directive 2006/24/EC obliges the Member States to ensure that certain minimum requirements as to data security are respected with regard to the data being retained. Apart from this, the provisions of Directives 95/46/EC and 2002/58/EC are fully applicable (see Recitals 15 and 16 of Directive 2006/24/EC). According to Article 8 of Directive 2006/24/EC, the Member States shall ensure that the data retained and any other necessary information can be transmitted upon request to the competent authorities without undue delay. Pursuant to Article 13 of Directive 2006/24/EC, the Member States shall furthermore ensure that the national measures implementing Chapter III of Directive 95/46/EC providing for judicial remedies, liability and sanctions are fully implemented with respect to the processing of data under Directive 2006/24/EC. The Directive does not make provision on who is to cover the costs of data storage.

87

3. Furthermore, § 100g StPO is significant for the Convention on Cybercrime of the Council of Europe (Federal Law Gazette II p. 1242; hereinafter: Convention on Cybercrime) (see Federal Law Gazette 16/5846, pp. 27-28 and 50). The Convention not only establishes an obligation to adopt substantive criminal law in order to fight cybercrime but also an obligation to adopt specific provisions under the law of criminal procedure. In particular, according to Article 16 of the Convention, the competent authorities must be enabled to order the expeditious preservation of traffic data. It must be made possible to oblige persons who are in control of such data to preserve and maintain the integrity of those computer data at short notice to enable the competent authorities to seek their disclosure (so-called quick freeze). The legislature, however, regarded it as dispensable to adopt a provision to this effect because the data to be frozen had to be retained anyway due to the comprehensive storage ordered pursuant to § 113a TKG (see Bundestag printed paper 16/5846, p. 53).

88

4. By its order of 11 March 2008, the Federal Constitutional Court, upon the application made by the complainants in the proceedings 1 BvR 256/08, issued a temporary injunction according to which § 113b sentence 1 no. 1 TKG may only be applied in a restricted manner until the decision in the main action (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE 121, 1). By its order of 28 October 2008, it extended the temporary injunction to the effect that until the decision in the main action, also § 113b sentence 1 nos. 2 and 3 TKG could only be applied with restrictions (see BVerfGE 122, 120). Apart from this, the Federal Government was ordered to report [to the Federal Constitutional Court] for consecutive periods of several months on the practical effects of the data retention measures provided in § 113a TKG and of the temporary injunction on the prosecution of criminal offences. The Federal Government complied with this order with regard to the periods lasting from 1 May 2008 to 31 July 2008, from 1 August 2008 to 1 March 2009 and from 1 March 2009 to 1 September 2009.

II.

89

1. The complainants in the proceedings 1 BvR 256/08 challenge §§ 113a and 113b TKG. They challenge the violation of Article 10.1, Article 12.1, Article 14.1, Article 5.1 and Article 3.1 GG. In the proceedings conducted under the case number 1 BvR 508/08, approximately 34,000 other complainants concurred with this, making the same submissions.

90-116

[…]

117

2. The complainants in the proceedings 1 BvR 263/08 challenge not only §§ 113a and 113b TKG but also § 100g StPO to the extent that it concerns the collection of the data stored pursuant to § 113a TKG. They challenge a violation of Article 1.1, Article 2.1 in conjunction with Article 1.1, Article 10.1 and Article 19.2 GG.

118-133

[…]

134

3. The complainants in the proceedings 1 BvR 586/08 also challenge §§ 113a and 113b TKG and § 100g StPO. They challenge the violation of Article 10.1 and Article 2.1 in conjunction with Article 1.1 GG.

135-145

[…]

III.

146

Opinions on the constitutional complaints were submitted by the Federal Government, the Federal Administrative Court (Bundesverwaltungsgericht ), the Federal Court of Justice (Bundesgerichtshof ), the Federal Commissioner for Data Protection and Freedom of Information (Bundesbeauftragter für den Datenschutz und die Informationsfreiheit ) and, on behalf of the commissioners for data protection of the Länder , by the Commissioner for Data Protection and Freedom of Information of the Land Berlin.

147

1. The Federal Government regards the constitutional complaints as inadmissible in part, at any rate as unfounded.

3. Through the Chairman of its First Criminal Senate and one of the pretrial judges, the Federal Court of Justice points out that to date in the case of criminal offences committed by means of telecommunications, data which would have allowed an identification of the perpetrator had normally already been deleted when the request for information was made. […]

167

4. The Federal Commissioner for Data Protection and Freedom of Information regards the storage of data without cause pursuant to § 113a TKG as unconstitutional. […]

168-170

[…]

171

5. The Commissioner for Data Protection and Freedom of Information of the Land Berlin considers the essence of the secrecy of telecommunications violated by §§ 113a and 113b TKG. […]

172

6. The experts Ms Constanze Kurz, Prof. Dr. Felix Freiling, Prof. Dr. Andreas Pfitzmann, Prof. Dr. Alexander Roßnagel, Prof. Dr. Christoph Ruland, the Federal Commissioner for Data Protection and Freedom of Information, the Commissioner for Data Protection and Freedom of Information of the Land Berlin, the Federal Ministry of Justice assisted by the Federal Ministry of Economics and Technology and by the Federal Ministry of the Interior, the complainants in the proceedings 1 BvR 256/08 and 1 BvR 263/08 as well as the Bundesverband Informationswirtschaft, Telekommunikation und neue Medien e.V. (BITKOM), the Verband der deutschen Internetwirtschaft e.V. (eco) and the Verband der Anbieter von Telekommunikations- und Mehrwertdiensten e.V. (VATM) have made statements regarding technical, factual and legal questions of the Court. They concerned the telecommunications traffic data, the persons obliged to perform data retention, the crimes committed by means of telecommunications, the giving of information pursuant to § 113 TKG, the securing of the retained data against unauthorised access and the possible legal provisions on the use of such data. In the drafting of the opinion by the Federal Ministry of Justice, the Federal Network Agency (Bundesnetzagentur ) cooperated via the Ministry of Economics and Technology; the Federal Criminal Police Office (Bundeskriminalamt ); the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz ) and the Federal Public Prosecutor General (Generalbundesanwältin ) cooperated through the Federal Ministry of the Interior.

B.

175

The constitutional complaints are admissible.

I.

176

1. The complainants admissibly challenge a violation of Article 10.1 GG. They use different telecommunications services such as in particular telephone services, electronic mail and Internet services for private and business purposes, and they put forward that the storage and intended use of their connection data violates their fundamental right to respect of the secrecy of telecommunications. As Article 10.1 GG also protects the confidentiality of the circumstances of acts of telecommunication (see BVerfGE 67, 157 (172); 85, 386 (396); 120, 274 (307); established case-law), such a violation by the challenged provisions is possible.

177

The challenged provisions also affect the complainants directly, personally and presently. It is true that the obligation to store data under § 113a TKG does not address the complainants, who are affected as users, but the service providers. The latter, however, are unconditionally obliged, without any margin for decision, to store the complainants’ data (see BVerfGE 107, 299 (313-314)). § 113a TKG thus directly and presently results in the storage of data of the complainants for the purposes provided for in § 113b sentence 1 TKG.

178

It also cannot be maintained that the complainants are not affected directly and personally with regard to § 113b TKG und § 100g StPO merely because the provisions only have an effect on the basis of further acts of execution and because it is not yet certain whether and to what extent data of the complainants will be affected. If the person affected does not gain knowledge of the acts of execution, it is sufficient to submit that he or she will with some probability be affected by such measures. What is decisive in this context is whether the measures have a wide range and can cover third parties incidentally (see BVerfGE 109, 279 (307-308); 113, 348 (363); 120, 378 (396-397)). Accordingly, the complainants have sufficiently shown that they are personally and directly affected. With regard to the considerable length of storage of six months, and the wide range of the collected data, it is not improbable that the transmission and the use of the data according to § 113b TKG and § 100g StPO also affects persons who have not given occasion to such measures. Statements by which the complainants themselves would have to charge themselves with a criminal offence are thus not necessary to substantiate their being personally affected (see BVerfGE 109, 279 (308); 113, 348 (363); 120, 378 (396-370)). They also do not have to state that they are responsible for substantial dangers to public security or engage in activities that affect the duties of the intelligence services.

179

2. The constitutional complaint of the fourth complainant in the proceedings 1 BvR 256/08 is also admissible with regard to Article 12.1 GG to the extent that it is directed against the technical and financial burdens which result from the duties of storage. As the provider of an anonymisation service, which also operates a publicly accessible server, the complainant is in principle submitted to the duties under § 113a TKG, without indemnification or compensation being provided for this. As sanctions of administrative fines exist for non-observance of these duties (see § 149.1 no. 36, 149.2 TKG), it is also unreasonable to expect the complainant to first await acts of execution, while infringing § 113a TKG in the meantime, and then to seek recourse before the non-constitutional courts against such acts (see BVerfGE 81, 70 (82)). Thus, the complainant is itself affected directly and presently as regards its occupational freedom,

II.

180

The constitutional complaints are not inadmissible to the extent that the challenged provisions have been enacted implementing Directive 2006/24/EC.

181

The Federal Constitutional Court, however, in principle does not exercise its jurisdiction to decide on the applicability of Community law, now Union law, that is relied on as a legal basis for any acts of German courts or authorities by German courts and authorities in the sovereign territory of the Federal Republic, and does not review such legislation by the standard of fundamental rights contained in the Basic Law, as long as the European Communities (or today the European Union), in particular the case-law of the European Court of Justice, generally ensure effective protection of fundamental rights which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Basic Law, and in so far as they generally safeguard the essential content of fundamental rights (see BVerfGE 73, 339 (387); 102, 147 (162-163)). These principles also apply to domestic legal provisions that implement mandatory requirements of a directive in German law. Constitutional complaints which challenge the application of European Union law which is binding in this sense are in principle inadmissible (see BVerfGE 118, 79 (95); 121, 1 (15)).

182

However, the complainants can rely on the fundamental rights contained in the Basic Law to the extent that the legislature has discretion regarding the implementation of European Union law, i.e. that the legislature’s action is not determined by European Union law (see BVerfGE 121, 1 (15)). Apart from this, the present constitutional complaints are also admissible to the extent that the challenged regulations are based on provisions of the Directive which have a mandatory character. The complainants assert that Directive 2006/24/EC lacks a competence basis in Community law and that it infringes European fundamental rights guarantees. They therefore seek inter alia a referral by the Federal Constitutional Court to the European Court of Justice so that the latter may, by means of a preliminary ruling according to Article 267 TFEU (formerly Article 234 TEC), declare the Directive void and thus open the way for a review of the challenged regulations against the standard of the German fundamental rights; they were not able to assert this before the non-constitutional courts because their constitutional complaints directly challenged the implementing Act. At any rate, a review of the challenged regulations against the standard of the fundamental rights contained in the Basic Law according to the relief sought by the complainants is not excluded from the outset.

C.

183

The constitutional complaints are essentially well-founded. The challenged provisions violate the complainants’ fundamental right under Article 10.1 GG. A referral to the European Court of Justice is out of the question, since any potential priority of Community law is not relevant. The constitutional guarantees of the Basic Law are not an obstacle to an implementation – in a different form – of Directive 2006/24/EC.

184

The constitutional complaint of the fourth complainant in the proceedings 1 BvR 256/08 is unfounded to the extent that it challenges a violation of Article 12.1 GG.

I.

185

The constitutional complaints give no occasion for referral for a preliminary ruling before the European Court of Justice under Article 267 of the Treaty on the Functioning of the European Union. It is true that such proceedings instituted by the Federal Constitutional Court (see BVerfGE 37, 271 (282)) might particularly come into consideration when it is necessary to answer questions on the interpretation or the validity of Community or European Union law, which has priority over domestic law and whose implementation the Federal Constitutional Court in principle does not review by the yardstick of the fundamental rights of the Basic Law. However, such a referral is only admissible and appropriate when the crucial factor is the interpretation or validity of European Union law. That is not the case here.

186

The validity of Directive 2006/24/EC and a priority of Community law over German fundamental rights which might possibly result from this are not relevant to the decision. The contents of the Directive leave to the Federal Republic of Germany a broad discretion in shaping the storage of telecommunications traffic data for which it provides. The Directive imposes on the Member States an obligation to require the operators of publicly accessible electronic communications networks and communications services to store virtually all telecommunications traffic data for a period of at least six months (Articles 1, 3, 5 and 6 Directive 2006/24/EC). But in doing this, its provisions are essentially limited to the duties of storage themselves, and do not govern access to the data or the use of the data by the Member States’ authorities. In particular, they harmonise neither the issue of access to data by the national authorities competent for criminal prosecution nor the issue of the use and the exchange of those data between those authorities (cf. ECJ, judgment of 10 February 2009 – C-301/06 –, 83). Proceeding on the basis of the minimum requirements of the Directive (Articles 7 and 13 Directive 2006/24/EC), it is also for the Member States to take the necessary measures to guarantee data security, transparency and legal protection.

187

With these contents, the Directive can be implemented in German law without violating the fundamental rights of the Basic Law. The Basic Law does not prohibit such storage in all circumstances. On the contrary, even independent of any priority of Community law, it may permissibly be ordered in compliance with the fundamental rights enshrined in the Basic Law (see IV below). A review of the challenged provisions as a whole by the yardstick of German fundamental rights is therefore not in conflict with Directive 2006/24/EC, and therefore the validity and priority of the latter is not relevant.

II.

188

The challenged provisions encroach upon Article 10.1 GG.

189

1. Article 10.1 GG guarantees the secrecy of telecommunications, which protects the incorporeal transmission of information to individual recipients with the aid of telecommunications traffic (see BVerfGE 106, 28 (35-36); 120, 274 (306-307)) against the taking of notice by state authority (see BVerfGE 100, 313 (358); 106, 28 (37)). In this connection, this protection does not only relate to the contents of the communication. On the contrary, the protection also covers the confidentiality of the immediate circumstances of the process of communication, which include in particular whether, when and how often telecommunications traffic occurred or was attempted between what persons or telecommunications equipment (see BVerfGE 67, 157 (172); 85, 386 (396); 100, 313 (358); 107, 299 (312-313)); 115, 166 (183); 120, 274 (307)).

190

The protection of Article 10.1 GG applies not only to the first access by which state authority takes notice of telecommunications events and contents. Its protective effect also extends to the information and data processing procedures which follow the taking of notice of protected communications events, and to the use that is made of the knowledge obtained (see BVerfGE 100, 313 (359)). An encroachment upon fundamental rights includes every taking of notice, recording and evaluation of communications data, and every analysis of their contents or other use by state authority (see BVerfGE 85, 386 (398); 100, 313 (366); 110, 33 (52-53)). The recording of telecommunications data, their storage, their comparison with other data, their evaluation, their selection for further use or their transmission to third parties are therefore each an individual encroachment upon the secrecy of telecommunications (see BVerfGE 100, 313 (366-367)). Consequently, an order to communications enterprises to collect and store telecommunications data and to transmit them to state agencies is in each case an encroachment upon Article 10.1 GG (see BVerfGE 107, 299 (313)).

191

The right arising from Article 2.1 in conjunction with Article 1.1 GG to informational self-determination does not apply in addition to Article 10 GG. In relation to telecommunications, Article 10 GG contains a special guarantee which overrides the general provision and which gives rise to special requirements for the data that are obtained by encroachments upon the secrecy of telecommunications. In this context, however, the requirements which the Federal Constitutional Court has developed from Article 2.1 in conjunction with Article 1.1 GG may largely be transferred to the more special guarantee of Article 10 GG (see BVerfGE 100, 313 (358-359)).

192

2. a) The storage of telecommunications traffic data imposed on the service providers under § 113a.1 TKG encroaches upon the secrecy of telecommunications. In the first instance, this applies to the duties of storage relating to telecommunications services under § 113a.2 to 113a.5 TKG and in conjunction with this under § 113a.6 and § 113a.7 TKG. The information to be stored under this provision indicates whether, when, where and how often connections were established or there was an attempt to establish connections between what telecommunications installations. In particular, this also applies to the storage of data in the service of electronic mail under § 113a.3 TKG, whose confidentiality is also protected by Article 10.1 GG (see BVerfGE 113, 348 (383); 120, 274 (307)). The fact that it is technologically easy to intercept emails does not alter their confidential character and their need for protection. In this connection, storage of the data relating to the Internet connection under § 113a.4 TKG is also an encroachment upon Article 10.1 GG. Internet access enables not only communication between individuals, which is protected by the secrecy of telecommunications, but also participation in mass communication. But since it is not possible to distinguish between individual and mass communication without referring to the contents of the information transmitted in each case, which is contrary to the protective function of the fundamental right, the very storage of the data relating to the Internet access as such is to be seen as an encroachment, even if they do not contain information on the Internet pages visited (see Gusy, in: v. Mangoldt/Klein/Starck, GG, vol. 1, 5th ed. 2005, Art.10 , marginal no. 44; Hermes, in: Dreier, GG, vol. 1, 2nd ed. 2004, Art. 10 , marginal no. 39).

193

The encroaching nature of § 113a TKG is also not called into question by the fact that the storage prescribed by this provision is made not by the state itself, but by private service providers. For these service providers are merely used by the state authorities as helpers to carry out their duties. § 113a TKG obliges the private communications enterprises to store data solely in order to carry out the tasks of state authorities for purposes of the prosecution of criminal offences, the warding off of danger and the performance of intelligence tasks under § 113b TKG. Under these provisions, the state directly orders the impairment of fundamental rights associated with the storage, and the enterprises with a duty of storage have no room for manoeuvre in this connection; the data are to be stored in such a way that requests for information from the public authorities entitled under § 113a.9 TKG can be complied with without delay. Under these conditions, the storage of the data is to be legally attributed to the legislature as a direct encroachment upon Article 10.1 GG (see BVerfGE 107, 299 (313-314)).

194

b) The provisions on data transmission in § 113b sentence 1 half-sentence 1 TKG also constitute encroachments upon fundamental rights in Article 10.1 GG. Admittedly, in itself this provision does not permit a use of the data stored under § 113a TKG, but refers to further statutory retrieval provisions which are to be separately created. However, it does contain the fundamental specification of the purposes for which the data may be used. In this respect, it releases the telecommunications enterprises from the duty of confidentiality to which they are otherwise subject. Ultimately, the final overall regulation of the use of the data is created only by the graduated meshing of provisions on various levels of legislation, but this does not alter the fact that the definition of the purposes of use and the permission to transmit data are part of the regulation of use and thus have the nature of an encroachment. Here too it is irrelevant that § 113b TKG relates to transmission of the data by private service providers. The transmission provided for is based on a statutory arrangement and therefore directly on an act of state authority, which under Article 1.3 GG is bound by fundamental rights, requires a sovereign order in the individual case, and is made to authorities. It is therefore to be seen in law as an encroachment by the state.

195

c) § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG also creates an encroachment upon Article 10.1 GG. It provides that authorities may demand from the service providers information on contract and customer data under §§ 95, 111 TKG; the service providers can only determine these by using the data stored under § 113a.4 TKG. Independently of the question as to whether and how far information under § 113 TKG is in general an encroachment upon Article 10.1 GG or whether fundamentally it is only the right to informational self-determination under Article 2.1 in conjunction with Article 1.1 GG that is affected here, at all events information under § 113b sentence 1 half-sentence 2, § 113.1 TKG is certainly an encroachment upon the secrecy of telecommunications of Article 10.1 GG. For the provision relates to the use of the data which are stored under § 113a TKG and thus acquired by an encroachment upon Article 10.1 GG. Every following use of data which were once obtained in the form of an encroachment upon Article 10.1 GG must always be measured against this fundamental right (see BVerfGE 100, 313 (359); 110, 33 (68-69)); 113, 348 (365)). Here too it must be immaterial that this use, provided by statute, is made not by state authority itself, but by private suppliers, complying with the request for information.

196

d) Finally, § 100g StPO is also an encroachment upon Article 10.1 GG. It enables the criminal prosecution authorities to have the data stored under § 113a TKG transmitted to themselves by the persons obliged to store them, and to use these data. § 100g.1 sentence 1 StPO itself and the exercise of this authorisation, therefore, as acts of public authority, also encroach upon the area of protection of Article 10.1 GG.

III.

197

Formally, there are no objections to the challenged provisions. They fulfil the requirement of a statutory basis under Article 10.2 sentence 1 GG, and they fall under a competence of the Federation.

198

1. Under Article 10.2 sentence 1 GG, restrictions of the secrecy of telecommunications may be imposed only on the basis of a statute. Firstly, there are no doubts in this connection with regard to § 113b TKG and § 100g StPO, which – if necessary in conjunction with other provisions – are a statutory basis for individual judicial orders, on the basis of which access to the data takes place. § 113a TKG is also constitutionally unobjectionable in this respect; for the storage of data, it does not refer to individual judicial orders but directly orders storage itself. Article 10.2 sentence 1 GG also does not prevent restrictions of the secrecy of telecommunications that are made directly by statute (see BVerfGE 85, 386 (396 et seq.)).

However, Article 73.1 no. 7 GG only directly authorises legislation on the technical aspect of the installation of a telecommunications infrastructure and of the transmission of information with the aid of telecommunications equipment. This Article does not cover provisions which are focused on the contents transmitted or the nature of the use of the telecommunications (see BVerfGE 113, 348 (368); 114, 371 (385)) and which, for example, provide for telecommunications surveillance for the purpose of acquiring information for tasks of criminal prosecution or warding off danger. With regard to legislative competence, each such provision is to be assigned to the area of law for whose purposes the surveillance is provided (see BVerfGE 113, 348 (368)).

201

However, §§ 113a and 113b TKG, as part of the provisions on data protection law, are also, by virtue of a factual connection, covered by the competence to pass telecommunications legislation. In the absence of express assignment of competence, the law of data protection is fundamentally in the competence of the Länder . But by virtue of a factual connection, the Federal legislature is competent to legislate on data protection, in that the Federation cannot sensibly legislate on a subject-matter allocated to it for legislation without legislating on the data protection provisions at the same time (see BVerfGE 3, 407 (421); 98, 265 (299); 106, 62 (115); 110, 33 (48); established case-law; on data protection law see Simitis, in: Simitis, BDSG , 6th ed. 2006, § 1 , marginal no. 4). This is the case with regard to §§ 113a, 113b TKG. These sections are connected to the provisions of the Telecommunications Act on data protection, and linked to the law on the technical conditions of the transmission of information they regulate the requirements to be observed in each case for handling the data created or processed in the provision of telecommunications services. They therefore link directly to facts that fall under the area of legislation of telecommunications. On account of this close connection between the technical transmission process and the data arising in this process, the necessary data-protection legislation for their use may only be passed uniformly by the Federal legislature, which has the competence to legislate on the transmission process. Otherwise there would be the danger that the technical and data-protection provisions on data processing would diverge, and this would be incongruous. Accordingly, in addition to the provisions of §§ 113a and 113b TKG and on the secrecy of telecommunications in §§ 88 et seq. TKG, the Telecommunications Act also contains, in §§ 91 to 107 TKG, extensive provisions on data protection that are specific to this area; as far as can be seen, their lawfulness from the point of view of competence has to date not seriously been called into question.

202

The scope of its competence allows the Federation to pass the provisions necessary to create legislation on the use of the data which is in conformity with fundamental rights. In particular, it may draft the provisions which are necessary in order that the data storage provided for in § 113a TKG and the transmission of the data to criminal prosecution authorities, authorities competent to ward off danger, and to intelligence services and the use of the data to issue information under § 113 TKG comply with the constitutional standards of Article 10.1 GG. Since it is a requirement of encroachments upon Article 10.1 GG that their purpose is determined in an area-specific and precise manner and is contained in well-defined provisions (see BVerfGE 100, 313 (359-360); 110, 33 (53); 115, 320 (365); 118, 168 (187-188)), this implies the competence to pass legislation on the purpose of the storage that is area-specific and precise and consists of well-defined provisions. However, in this connection the legislative competence of the Federation only extends as far as is required under data-protection aspects and the associated constitutional requirements. The Federation may therefore not base the authorisations for data retrieval itself on Article 73.1 no. 7 GG. It needs a separate legal basis for this, or else it must leave the decision on it to the Länder .

203

§§ 113a, 113b TKG fundamentally take this into consideration. They are exclusively restricted to creating the conditions for access to the data by the state through storage duties and provisions on transmission. But filling in the details is left to separate provisions on data retrieval. Notwithstanding the question of substantive law as to whether the Federation has sufficiently restricted the purposes of use here (see below C V 5 and VI 3 b), there are no objections to this on the grounds of competence.

IV.

204

The encroachments upon the secrecy of telecommunications are substantively constitutional if they serve legitimate purposes in the public interest and apart from this comply with the principle of proportionality (see BVerfGE 100, 313 (359)), i.e., are suitable, necessary and appropriate to fulfil the purposes (see BVerfGE 109, 279 (335 et seq.); 115, 320 (345); 118, 168 (193); 120, 274 (318-19)); established case-law).

205

Storage of telecommunications traffic data without cause for six months for qualified uses in the course of prosecution, the warding off of danger and intelligence service duties, as is provided by §§ 113a, 113b TKG, is therefore not in itself incompatible with Article 10 GG. The legislature may in such a provision pursue legitimate purposes to attain which such storage is suitable and necessary within the meaning of the principle of proportionality. Nor is such storage unjustifiable from the outset in relation to proportionality in the narrow sense. If legislation is drafted in a way that takes sufficient account of the encroachment contained in this, storage of telecommunications traffic data without cause is not as such automatically covered by the strict prohibition of data retention within the meaning of the case-law of the Federal Constitutional Court (see BVerfGE 65, 1 (46-47). 115, 320 (350); 118, 168 (187)).

206

1. Making criminal prosecution, warding off danger and performing the tasks of the intelligence service more effective is a legitimate purpose, which can in principle justify encroachment upon the secrecy of telecommunications (see BVerfGE 100, 313 (373, 383-384); 107, 299 (316); 109, 279 (336); 115, 320 (345)). In this connection, the fact that the telecommunications traffic data are to be secured without cause by way of precaution does not automatically constitute an illegitimate objective which cancels the very principle of liberty of Article 10.1 GG. Article 10.1 GG does not prohibit every collection and storage of data whatsoever, but gives protection against a disproportionate organisation of such data collections, and in this connection in particular against boundary-expanding objectives. Only the precautionary storage of personal data for purposes that are indefinite and cannot yet be determined is strictly prohibited (see BVerfGE 65, 1 (46); 100, 313 (360)). However, only exceptionally is the precautionary storage of data permissible. Both its justification and its formulation, in particular also with regard to the envisaged purposes of use, are subject to especially strict requirements.

207

2. The legislature may regard as suitable to obtain its objective a precautionary storage of telecommunications traffic data without cause for later transmission with cause to the authorities responsible for criminal prosecution or warding off danger or to the intelligence services. This creates possibilities of detection which would otherwise not exist and in view of the increasing importance of telecommunications are promising in many cases also for the preparation and commission of criminal offences. It is irrelevant whether the provisions created by the legislature are capable of seamlessly reconstructing all telecommunications connections. Even though such a storage of data cannot ensure that all telecommunications connections can reliably be assigned to specific users, and it may be possible for criminals to circumvent storage by using Wi-Fi hotspots, Internet cafés, foreign Internet telephone services or prepaid mobile telephones registered under a false name, this cannot be cited to show that such a provision is not suitable. Suitability does not demand that the goal of the legislation is actually attained in every single case, but merely requires that the attainment of the goal is facilitated (see BVerfGE 63, 88 (115); 67, 157 (175); 96, 10 (23); 103, 293 (307)).

208

3. The legislature may also treat a six-month storage of the telecommunications traffic data as necessary. There are no less drastic means apparent that would enable similarly broad detection possibilities. In particular, the procedure known as data preservation or quick freeze is inferior with regard to effective detection; in this, the general storage of telecommunications data without cause is replaced by storage only in the individual case, which is not ordered until the date when there is concrete cause for it, for example on the basis of a particular suspicion of a criminal offence. Such a procedure, which can only cover data from the time before they were ordered to be stored if they are still available, is not as effective as continuous storage, which guarantees the existence of a complete set of data for the last six months.

209

4. Nor is storage of telecommunications traffic data for six months to an extent as provided in § 113a TKG disproportionate in the narrow sense from the outset.

210

a) Admittedly, such storage constitutes a particularly serious encroachment with a broader range than anything in the legal system to date: throughout the whole six-month period, virtually all telecommunications traffic data of all citizens are stored, without a connection to culpable conduct attributable to them, or to a dangerous situation – even a merely abstract one –, or to a situation otherwise qualified. This storage relates to everyday actions which are a basic part of day-to-day interaction and which are now indispensable for taking part in social life in the modern world. Fundamentally, no form of telecommunications is as a matter of principle excluded from storage. Admittedly, the provision ultimately leads to occasional gaps, which prevent every telecommunications connection without exception from being reconstructed with individual details, for example in certain circumstances in the use of Wi-Fi hotspots, complex private networks or service providers outside the EU. However, this does not give the citizen a regular possibility of avoiding storage. Instead, the legislature attempts fundamentally to provide for all telecommunications connections in such a way that the users can be determined as extensively as possible.

211

The informative value of these data is extremely broad. Depending on the use of the telecommunications services by the persons affected, a high degree of knowledge of the social environment and the individual activities of each citizen may be obtained even from the data themselves – and all the more if the data are used as starting points for further investigations. Admittedly, storage of telecommunications traffic data, as provided for in § 113a TKG, records only the connection data (time, duration, connections involved and – in the case of mobile telephony – location), but not in addition the contents of the communication. However, it is possible to draw conclusions with regard to contents that extend into the private sphere even from these data, if they are subjected to comprehensive and automated analysis. If recipients (the particular occupational groups, institutions or interest groups they belong to or the services they offer), dates, times and places of telephone conversations are observed for a long period of time, then in combination they permit detailed conclusions on social or political affiliations and personal preferences, inclinations and weaknesses of the persons whose connection data are analysed. There is no protection of confidentiality in this connection. Depending on the use of the telecommunications, and in future with increasing frequency, such storage can make it possible to create meaningful personality profiles and mobility profiles of virtually all citizens. In relation to groups and associations, the data also, in certain circumstances, may make it possible to reveal internal influence structures and decision-making processes.

212

Storage which fundamentally makes such uses possible and in particular cases is intended to make them possible constitutes a serious encroachment. In this connection, it is also significant that, independent of a legislative approach to the use of data of whatever nature, the risk of citizens considerably increases of being exposed to further investigations without themselves having given occasion for this. For example, it is enough to have been in a particular radio cell, or to have been contacted by a particular person, at an inconvenient time, for a person to be exposed to wide-ranging investigations and to come under pressure to give explanations. In addition, the possibilities of abuse that are associated with such a collection of data aggravate its burdensome effect. This is particularly the case in view of the large number of varying private providers which store telecommunications data. Merely in view of the number of persons with duty of storage, the number of those who have and need to have access to such data is large. Since the duty of storage also affects small service providers, protection against abuse, notwithstanding all possible and necessary efforts of the legislature, has structural limits in view of the economic efficiency of those service providers. This is aggravated by the fact that the standards imposed on data management and the transmission of the data to the authorities require a high degree of technological competence and sophisticated software, and this inevitably entails the danger of weak points and the risk of manipulation by interested third parties. Particular weight also attaches to the storage of the telecommunications data because the storage itself and the intended use of the stored data are not directly noticed by the persons affected, but at the same time they include connections which are engaged in with an expectation of confidentiality. As a result of this, the storage of telecommunications traffic data without cause is capable of creating a diffusely threatening feeling of being watched which can impair a free exercise of fundamental rights in many areas.

213

b) Despite its extremely broad range and the weight of the encroachment associated with it, the legislature is not absolutely prohibited under constitutional law from introducing a six-month duty of storage, as provided for in § 113a TKG. However, under the established case-law of the Federal Constitutional Court, the state is strictly prohibited under constitutional law from creating a collection of personal data by way of precaution and retaining it for purposes that are indefinite or that cannot yet be determined (see BVerfGE 65, 1 (46); 100, 313 (360); 115, 320 (350); 118, 168 (187)). The precautionary storage without cause of telecommunications connections data is not in every case such a form of data collection forbidden from the outset. Instead, if it is done for specific purposes, such a storage, as part of a statutory structure which is adequate to the encroachment (see V below), may also satisfy the requirements of proportionality in the narrow sense.

214

aa) The first relevant factor for this is that the storage of the telecommunications traffic data provided is realised not directly by the state, but by a duty imposed on the private service providers. In this way, the data are not yet combined at the time of storage itself, but remain distributed over many individual enterprises and are not directly available to the state in their entirety. In particular, the state has no direct access to the data; this must be ensured by appropriate legislation and technical precautions. The retrieval of the data by state agencies is done only in a second stage, and then related to a specific occurrence, in accordance with criteria to be legally defined in more detail. In this connection, the formulation of the provisions giving permission for retrieval and further use of the stored data may ensure that the storage is not made for purposes that are indefinite or cannot yet be determined. Thus, if such a duty of storage is imposed, it can and must be guaranteed that an actual taking notice and use of the data remains limited by well-defined provisions in a manner that takes account of the weight of the extensive collection of data and that restricts the retrieval and the actual use of the data to the part of the data pool that is absolutely necessary. At the same time, the separation of storage and retrieval structurally promotes the transparency and supervision – to be guaranteed in more detail by legislative drafting – of the use of the data.

215

bb) Nor does a six-month storage of the telecommunications traffic data in itself cancel the principle of Article 10.1 GG; it violates neither that Article’s core of human dignity (Article 1.1 GG) nor its essence (Article 19.2 GG). Despite its extraordinary breadth, it remains effectively limited. Thus, for example, the contents of the telecommunications events are excluded from the storage, which is restricted to the traffic data. In addition, the duration of the storage is restricted. Admittedly, a period of six months’ storage is very long, in view of the extent and informative value of the stored data, and it is at the upper limit of what can be justified from the point of view of proportionality. After the end of this period, however, citizens may rely on their data being deleted – unless they have exceptionally been retrieved for cause – and no longer being reconstructible by anyone.

216

cc) Nor does storage of the telecommunications traffic data for six months appear to be a measure directed towards total recording of the citizens’ communications or activities as a whole. Instead, it takes up, in a manner still limited, the special significance of telecommunications in the modern world and reacts to the specific potential danger associated with this. The new means of telecommunications overcome time and space in a manner that is not comparable with other forms of communication, and that fundamentally excludes public awareness. In this way, at the same time, they facilitate concealed communications and actions of criminals and also enable scattered groups of only a few persons to form and to cooperate effectively. The communication, which is virtually without resistance, enables knowledge, readiness to act and criminal energy to be combined in a way that confronts warding off danger and criminal prosecution with novel tasks. Some criminal offences are committed directly with the help of the new technology. Integrated into a conglomeration of computers and computer networks which communicate with each other only through technology, such activities largely escape observation. At the same time, they can create new kinds of dangers, for example by attacks on third-party telecommunications. For effective criminal prosecution and warding off of danger, therefore, a reconstruction of telecommunications connections is of particular importance.

217

Another problem is that because telecommunications data are not publicly perceptible, there is also no social memory, unlike in other areas, which would permit past events to be reconstructed on the basis of chance memories. Telecommunications data are either deleted, after which they are completely lost, or stored, after which they are completely available. Consequently, in the decision as to how far such data are to be deleted or stored, the legislature may undertake a balancing of interests and take account of the concerns of state performance of duties. In this process, it may also include in its considerations the fact that the popularity of particular forms of contract used by telecommunications services providers (such as the increase of flat-rate services) reduces the availability of such data where there is a strict duty of deletion of telecommunications traffic data which are not needed for the performance of the contract. In this respect too, the precautionary storage of telecommunications traffic data may be based on aspects which have a specific foundation in special features of modern telecommunications.

218

Conversely, the storage of the telecommunications traffic data may not be seen as a step in the direction of legislation aiming at as comprehensive as possible a storage by way of precaution of all data useful for criminal prosecution or the prevention of danger. Regardless of the structure of the provisions on use, such legislation would from the outset be incompatible with the constitution. For precautionary storage of telecommunications traffic data without cause to be constitutionally unobjectionable, this procedure must, instead, remain an exception to the rule. Nor may it, in interaction with other existing files, lead to virtually all activities of the citizens being reconstructible. It is therefore in particular essential for the justifiability of such storage that it is not made directly by state agencies, that it does not also contain the contents of the communications, and that commercial service providers are in principle prohibited from also storing details of the Internet sites visited by their customers. The introduction of the storage of telecommunications traffic data may therefore not serve as a model for the precautionary creation without cause of further data pools, but forces the legislature to exercise greater restraint in considering new duties or authorisations of storage with regard to the totality of the various data pools already in existence. It is part of the constitutional identity of the Federal Republic of Germany that the exercise of freedom of its citizens may not be totally be recorded and registered (on the constitutional identity retention principle, see BVerfG, judgment of the Second Senate of 30 June 2009 – 2 BvE 2/08 and others –, juris, marginal no. 240), and the Federal Republic of German must endeavour to preserve this in European and international contexts. Precautionary storage of telecommunications traffic data also considerably reduces the latitude for further data pools created without cause, including collections by way of European Union law.

219

dd) To summarise, a six-month storage of telecommunications traffic data to the extent provided by the legislature in § 113a.1 to 8 TKG is not disproportionate from the outset in the present circumstances. However, in order for it to be constitutionally unobjectionable, it is necessary for the formulation of the legislation on the storage and the use of the data to take appropriate account of the particular weight of such storage.

V.

220

The formulation of the legislation on a precautionary storage of telecommunications traffic data, as provided in § 113a TKG, is subject to specific constitutional requirements, in particular with regard to data security, to the extent of the use of the data, to transparency and to legal protection. Only if sufficiently sophisticated and well-defined provisions are drafted is the encroachment constituted by such storage proportionate in the narrow sense.

221

1. Storage of telecommunications traffic data in the extent of § 113a TKG requires the statutory guarantee of a particularly high standard of data security.

222

In view of the extent and the potential informative value of the retained data gathered by such storage, data security is of great importance for the proportionality of the challenged provisions. This applies in particular because the data are stored by private service providers which act under the conditions of profitability and cost pressure and in doing so have only limited incentives to guarantee data security. They act in principle in their private interest and are not bound by specific official duties. At the same time, the danger of illegal access to the data is great, for in view of their broad informative value, these data may be of interest to the most varied actors. A particular high standard of security is therefore necessary, which extends beyond the degree generally required under constitutional law for the storage of telecommunications data. Such requirements of data security here apply both to the storage of the data and to their transmission; similarly, effective safeguards are necessary to guarantee that the data are deleted.

223

In the statements in the oral hearing and in the written submissions to the present proceedings, experts referred to a broad spectrum of instruments to increase data security. For example, there was reference to separate storage of the data to be stored under § 113a TKG on computers which are also physically separate from each other and not connected to the Internet; an asymmetrical cryptographic encryption with keys stored separately; the requirement of the four-eyes principle for access to the data, combined with progressive methods of authentication for access to the keys; revision-proof recording of the access to the data and their deletion; and the use of automated error-correction and plausibility procedures. Supplementing such technologically oriented instruments, reference was also made to the creation of duties to provide information in the case of violations of data protection; the introduction of no-fault liability; or a strengthening of the claims to compensation for intangible damage, in order in this way to create an incentive to implement effective data protection.

224

The Basic Law does not lay down in detail what specific security measures are required. Ultimately, however, a standard must be guaranteed which, specifically taking into account the special features of the data pools created by precautionary storage of telecommunications traffic data, guarantees a particularly high degree of security. In this connection, it must be ensured that this standard – for example by recourse to legal concepts of non-constitutional law such as the state of the art (see Heibey, in: Roßnagel, Handbuch Datenschutzrecht , 2003, p. 575, marginal no. 19, p. 598, marginal no. 145; Tinnefeld/Ehrmann/Gerling, Einführung in das Datenschutzrecht , 4th ed. 2005, p. 628) – is oriented to the state of development of the discussion between specialists and constantly absorbs new knowledge and insights. It must therefore be provided that the enterprises with a duty of storage must adapt their measures to this in a verifiable manner, for example on the basis of security policies which are to be renewed periodically. By reason of the potential danger that follows from the data pools in question, it is not possible to subject the security requirements described to a free weighing of interests against general business considerations. If the legislature provides for comprehensive storage of telecommunications traffic data without exceptions, it is part of the necessary requirements that the providers affected can not only perform their duty of storage, but also comply with the corresponding data security requirements. Taking up the expert opinions, it is natural to conclude that in the present state of discussion, it is in principle necessary for the data to be stored separately, and for there to be sophisticated encryption, a secured access regime, using, for example, the four-eyes principle, and revision-proof recording, in order to adequately guarantee the security of the data under constitutional law.

225

There is a need for statutory provisions which lay down such a particularly high security standard in a qualified manner and are at all events fundamentally well-defined and legally binding. In this connection the legislature is free to entrust a regulatory agency with the technicalities of putting the prescribed standard into concrete terms. In this process, however, the legislature must ensure that the decision as to the nature and degree of the protective precautions to be taken does not ultimately lie without supervision in the hands of the respective telecommunications providers. The requirements to be made must either be laid down in sophisticated technical provisions – possibly graduated on various levels of legislation – or in a general manner and then be put in specific terms in a transparent manner by a binding individual decision of the regulatory authorities addressed to the individual enterprise. In addition, there is also a constitutional requirement of monitoring which is comprehensible to the public and which involves the independent data protection officer (see BVerfGE 65, 1 (46)) and a balanced system of sanctions which also attaches reasonable weight to violations of data security.

226

2. Storage of telecommunications traffic data as provided by § 113a TKG also requires statutory provisions on the use of these data. The drafting of these provisions on use, in a manner that is not disproportionate, thus not only decides on the constitutionality of these provisions, which in themselves constitute an encroachment, but also has an effect on the constitutionality of the storage as such. Under the case-law of the Federal Constitutional Court, the greater is the weight of the encroachment constituted by the storage, the more narrowly the requirements for the use of data and their extent must be defined in the relevant basic statutory provisions. The occasion, purpose and extent of the given encroachment and the corresponding thresholds of encroachment must here be defined by the legislature in a manner that relates to a specific area and is precise and consists of well-defined provisions (see BVerfGE 100, 313 (359-360); 110, 33 (53); 113, 29 (51); 113, 348 (375); 115, 166 (191); 115, 320 (365); 118, 168 (186-187)).

227

The use of the data pools obtained from systematic storage without cause of virtually all telecommunications traffic data is therefore subject to particularly strict requirements. In particular, this use is not constitutionally permissible to the same extent as the use of telecommunications traffic data which the service providers are permitted to store under § 96 TKG, depending on the given operational and contractual circumstances, which can in part be influenced by the customers. In view of the systematic precautionary storage of traffic data for six months, which is unavoidable and complete and thus results in increased informative value, their retrieval is incomparably weightier. Since an analysis of these data permits conclusions that reach deep into private lives, and in certain circumstances makes it possible to make detailed personality profiles and track users’ movements, it cannot automatically be assumed in this connection that recourse to these data carries fundamentally less weight than the content-based monitoring of telecommunications (on retrieval under the old law see BVerfGE 107, 299 (322)). Instead, the use of such data can also only be seen as proportionate if it serves particularly high-ranking reasons of public interest. A use of the data may therefore only be considered for overridingly important tasks of the protection of legal interests, that is, to punish criminal offences which threaten legal interests of paramount importance or to ward off dangers to such legal interests.

228

a) From this it follows for the prosecution of crimes that if the data are to be retrieved, there must at least be the suspicion of a serious criminal offence, based on specific facts. Together with the obligation to store data, the legislature must provide an exhaustive list of the criminal offences that are to apply here. In this, it has scope for assessment. It may either have recourse to existing lists or create its own list, for example in order to include criminal offences for which telecommunications traffic data are particularly important. However, if a criminal offence is to be categorised as serious, this must be objectively expressed in the statutory definition, in particular, for example, by the range of punishment provided (see BVerfGE 109, 279 (343 et seq., in particular 347-348). But a blanket clause or a mere reference to criminal offences of considerable significance is not sufficient.

229

In addition to laying down such a list of criminal offences in abstract terms, the legislature must ensure that recourse to the telecommunications traffic data stored by way of precaution is permissible only if the criminal offence prosecuted is also serious in the individual case (see BVerfGE 121, 1 (26) and the use of the data is proportionate; on criminal offences of considerable significance, see BVerfGE 107, 299 (322); on particularly serious criminal offences within the meaning of Article 13.3 GG, see BVerfGE 109, 279 (346)).

230

b) The use of the data in question must also be effectively restricted for the purpose of warding off danger. In this connection, permitting access to data with reference to lists of specific criminal offences which the use of the data is intended to prevent (see BVerfGE 122, 120 (142)) is not a suitable legislative approach. It removes the clarity from the requirements of the degree of endangerment to legal interests and leads to uncertainty where the definitions of legal offences penalise even acts preparatory to the commission of an offence and mere endangerments of legal interests. Instead, a solution might be for legislation to refer directly to the legal interests whose protection is to justify a use of the data, and to the degree of danger to these legal interests that must be attained as a threshold of encroachment. Such an approach corresponds to the character of warding off danger as the protection of legal interests and guarantees a direct connection to the main objective which is intended to justify the encroachment upon fundamental rights.

231

It follows from weighing the encroachment constituted by the storage and use of data and the importance of effective warding off of danger that retrieval of the telecommunications traffic data stored by way of precaution may only be permitted to ward off dangers to the life, limb or freedom of a person, to the existence or the security of the Federation or of a Land or to ward off a danger to public safety (see BVerfGE 122, 120 (141 et seq.)). In this connection, the enabling statute must at least require actual evidence of a concrete danger to the legal interests to be protected. This requirement means that presumptions or general principles derived from experience are not sufficient to justify access to the data. On the contrary, specific facts must have been established which support the prognosis of a concrete danger. Here, the facts of the case must be such that there is sufficient probability in the individual case that specific persons will cause damage to the interests protected by the legislation in the foreseeable future, if the state does not intervene. The statements by the Senate in this connection on the requirements for online searches apply here with the necessary modifications (see BVerfGE 120, 274 (328-329)). The concrete danger is defined by three criteria: the individual case, the imminence of the time when a danger will become actual damage, and the relationship to individual persons who are likely to cause the damage. Admittedly, the retrieval of the data stored by way of precaution may already be justified at a time when it is not yet possible with sufficient probability to establish that the danger will arise in the near future, provided that particular facts indicate the threat of a danger to a legal interest of paramount importance. On the one hand, the facts must allow events to be identified, and it must at least be possible for the nature of these events to be put into concrete terms and for the time of their occurrence to be foreseeable, and on the other hand, the facts must indicate that particular persons will be involved, and at least enough must be known of their identity to allow the measure to be specifically targeted at them and concentrated on them. In contrast, insufficient account is taken of the weight of the encroachment upon fundamental rights if the actual occasion of the encroachment is located far in advance of a concrete danger to the interests protected by the legislation, and this concrete danger cannot yet be foreseen in concrete terms.

232

c) The constitutional requirements for the use of the data to ward off danger apply to all authorisations to encroach whose objective is preventive. They therefore also apply to the use of the data by the intelligence services. Since in all these cases the adverse effect of the encroachment is the same for those affected, there is no occasion to create different rules depending on the authority involved, for example to distinguish between police authorities and other authorities which have preventive duties, such as authorities for the protection of the constitution. The fact that police authorities and authorities for the protection of the constitution have difference duties and powers and may consequently undertake measures with different degrees of encroachment is in principle irrelevant to the weighting of a use of telecommunications traffic data stored by way of precaution comprehensively and for a long time (see BVerfGE 120, 274 (329-330)). Admittedly, differentiations between the authorisations of the various authorities with preventive duties may stand up to constitutional review (see BVerfGE 100, 313 (383); 120, 274 (330)). However, when the legislature provides for the individual powers of security authorities whose duty is advance intelligence, it is bound by the constitutional requirements which follow from the principle of proportionality (see BVerfGE 120, 274 (330-331)). In the present case, these lead to the conclusion that particular requirements must be imposed for the use of data both with regard of the legal interests to be protected and with regard to the threshold of encroachment to be observed in this connection.

233

There is no reason why these requirements should not apply to the intelligence services’ performance of their tasks. Admittedly, the tasks of the intelligence services are fundamentally restricted to the collection of information to be supplied to the government. This reduces the weight of the encroachment in that the danger that the individual citizen is observed is not compounded by the danger of further measures following on this. At the same time, however, the weight needed to justify such encroachments is reduced, for mere information given to the government cannot prevent violations of legal interests. Preventing violations of legal interests is only possible as a result of subsequent measures taken by the authorities responsible for warding off danger, whose constitutional restrictions in the use of the data may not be circumvented by more extensive powers of use granted in advance. Apart from this, there is a particularly burdensome effect of such encroachments upon the citizens in that not only the given encroachment upon the secrecy of telecommunications as such is normally hidden, but virtually all the activities of the intelligence services are carried out in secret. The powers given to these services to use the telecommunications traffic data which have been comprehensively stored by way of precaution thus particularly encourage the sense of being observed in a manner that cannot be monitored, and develop persistent intimidating effects on the exercise of freedom.

234

The Senate is aware that as a result of this, use by the intelligence services of the telecommunications traffic data stored by way of precaution will in many cases be impossible. However, this results from the nature of their tasks in advance intelligence and does not create a constitutionally acceptable occasion to relax the requirements for an encroachment of this kind that arise from the principle of proportionality (see BVerfGE 120, 274 (331)).

235

d) It must also be ensured that the restriction of the use of data to specific purposes also applies to the use of the data after they are retrieved and transmitted to the retrieving authorities, and there must be procedures in place to support this. In this respect it must be guaranteed by statute that after transmission the data are analysed without delay and, where they are irrelevant to the purposes of the collection, are deleted (see BVerfGE 100, 313 (387-388)). Apart from this, it must be provided that the data are destroyed as soon as they are no longer necessary for the purposes laid down, and that a record is made of this (see BVerfGE 100, 313 (362); 113, 29 (58)).

236

The telecommunications traffic data do not lose the protection given them by Article 10 GG as a result of the fact that a state authority has already obtained knowledge of them. The fundamental right’s requirement that the use be clearly limited to specific purposes therefore also applies to the transmission of the data and information to further authorities. However, this does not exclude changes of purpose. But these require their own statutory basis, which in its turn must comply with constitutional requirements (see BVerfGE 100, 313 (360); 109, 279 (375-376)). In consequence, there may only be a provision for the transmitted telecommunications traffic data to be passed on to further agencies where as this is done to carry out duties for which direct access to these data would also be permissible (see BVerfGE 100, 313 (389-390); 109, 279 (375-76)); 110, 33 (73)). This must be recorded by the authority passing the data on (see BVerfGE 100, 313 (395-396)). Here, the limitation to specific purposes can be guaranteed only if it is still discernible after the collection that these are data which were stored without cause by way of precaution. Accordingly, the legislature must provide for an obligation to label these data (see BVerfGE 100, 313 (360-361)).

237

e) Finally, there may also be constitutional limits with regard to the extent of the data to be retrieved. Thus, for example, from the point of view of proportionality, many gradations can be identified within the various requests for information, for example depending on whether they relate only to one single telecommunications connection, whether they are directed at the transmission of data from one single radio cell at a particular time, whether they relate only to the communication between individual persons – possibly restricted to a particular period of time or a particular form of communication – and at the same time either include or exclude the location data, or whether they aim at a complete transmission of the data of a person to track that person’s movements or create a personality profile of that person with as much detail as possible. With regard to the weight of the encroachment, it may also make a difference whether, when the data are transmitted, filters are used to screen out specific telecommunications connections to protect particular confidential relationships.

238

But in view of the high thresholds which under the above standards already apply fundamentally to the use of telecommunications traffic data stored by way of precaution, the legislature has legislative discretion when it provides in more detail for the scope of the use of data. In particular, the legislature is fundamentally also at liberty to leave such considerations of proportionality to the judge appointed to decide whether to order a retrieval of data, in the review of the individual case. As a product of the principle of proportionality, it is, however, constitutionally required that there should be a fundamental prohibition of transmission of data, at least for a narrowly defined group of telecommunications connections which rely on particular confidentiality. These might include, for example, connections to persons, authorities and organisations in the social or ecclesiastical fields which offer advice in situations of emotional or social need, completely or predominantly by telephone, to callers who normally remain anonymous, where these organisations themselves or their staff are subject to other obligations of confidentiality in this respect (see § 99.2 TKG).

239

3. In addition, precautionary storage of telecommunications traffic data without cause and the use of these data are only proportionate if the legislature takes sufficient precautions to ensure the transparency of the use of data and to guarantee effective legal protection and effective sanctions.

240

a) The requirements of the constitutionally unobjectionable use of data obtained by such storage include requirements as to transparency. As far as possible, the use of the data must be open. Failing this, it is in principle necessary for the persons affected to be informed, at least subsequently. If, exceptionally, even this subsequent notification is not made, there must be a judicial decision with regard to the non-notification.

241

aa) Precautionary storage without cause of all telecommunications traffic data for a period of six months is such a serious encroachment inter alia because it can create a sense of being permanently monitored; in an unforeseen manner, it permits a high degree of knowledge of private life, without the recourse to the data being directly perceptible by or visible to the citizen. The individual does not know which state authority knows what about him or her, but knows that the authorities may know a great deal about him or her, including highly personal matters.

242

By effective provisions on transparency, the legislature must counteract the diffuse sense of threat which may attach to data storage as a result of this. Provisions on information for the persons affected by the collection or use of data are generally among the elementary instruments of constitutional data privacy (see BVerfGE 100, 313 (361); 109, 279 (363-364)); 118, 168 (207-208)); 120, 351 (361-361)). In this respect, strict requirements must be imposed on the use of the data pools resulting from precautionary storage of telecommunications traffic data without cause, which are extensive and offer a variety of information. On the one hand, these requirements must reduce a sense of threat, which arises from ignorance as to the factual relevance of the data, must counteract speculations which create a sense of insecurity, and must make it possible for those affected to address such measures in public discourse. On the other hand, such requirements may also be derived from the precept of effective legal protection under Article 10.1 GG in conjunction with Article 19.4 GG. Without knowledge, those affected may assert neither unlawful official use of the data nor any rights to deletion, correction or legal redress (see BVerfGE 100, 313 (361); 109, 279 (363); 118, 168 (207-208)); 120, 351 (361)).

243

bb) The requirements for transparency include the principle that the collection and use of personal data should be open. Use of the data without the knowledge of the person affected is constitutional only if otherwise the purpose of the investigation served by the retrieval of data would be frustrated. The legislature may in principle assume that this is the case for warding off danger and carrying out the duties of the intelligence services. In contrast, in criminal prosecution there is also the possibility that data may be collected and used openly (see § 33.3 and 33.4 StPO). In this connection, investigation measures are sometimes also taken in other matters with the knowledge of and in the presence of the suspect (see for example §§ 102, 103, 106 StPO). Accordingly, persons affected must as a general rule be notified before the retrieval or transmission of their data. There may only be a provision for secret use of the data here if such use is necessary and is ordered by a judge in the individual case.

244

Insofar as the use of the data is secret, the legislature must provide for a duty of information, at least subsequently. This must guarantee that the persons to whom a request for data retrieval directly applied – whether as suspects, as persons endangering public security, or as third parties – are in principle informed, at least subsequently. The legislature may provide for exceptions in weighing the notification against constitutionally protected legal interests of third parties. However, these must be restricted to what is absolutely necessary (see BVerfGE 109, 279 (364)). It is conceivable that there may be exceptions to the duties of notification in connection with the prosecution of criminal offences, for example where knowledge of the encroachment upon the secrecy of telecommunications would result in it failing to achieve its objective, if the notification cannot be made without endangering the life and limb of a person or if the concerns of an affected person which carry more weight conflict with it, for example because the notification of a measure that has had no further consequences would increase the encroachment upon fundamental rights (see BVerfGE 100, 313 (361); 109, 279 (364 et seq.)). If there are compelling reasons which also exclude subsequent notification, this must be judicially confirmed and reviewed at regular intervals (see BVerfGE 109, 279 (367-368)). In a corresponding manner, it is also necessary to structure the duties of notification with regard to the use of the data for purposes of warding off dangers or of intelligence service duties.

245

In contrast, it is not constitutionally required to provide for comparably strict notification duties for persons whose telecommunications traffic data were only by chance collected together with others and who are not themselves the target of the actions of the authority. There may be a large number of such persons involved in the analysis of telecommunications traffic data, but knowledge of their data for a short period of time may not leave traces or have consequences for the persons involved. On the contrary, in an individual case a notification may aggravate the encroachment upon their fundamental rights (see BVerfGE 109, 279 (365); Chamber Decisions of the Federal Constitutional Court (Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK) 9, 62 (81)). In these cases, it is in principle possible for a notification to be withheld even if the persons involved were affected by the measure, but only trivially, and it is to be assumed that they have no interest in the notification. There is no need for judicial confirmation of this decision on the weighing of interests.

246

b) In addition, the proportionate formulation of precautionary storage of telecommunications traffic data and of their use requires that effective legal protection and adequate sanctions are guaranteed.

247

aa) In order to guarantee effective legal protection, a retrieval or transmission of these data must fundamentally be made subject to judicial authority.

248

Under the case-law of the Federal Constitutional Court, in the case of investigation measures which create a serious encroachment upon fundamental rights preemptive supervision by an independent instance may be constitutionally required. This applies in particular if the encroachment upon fundamental rights is made secretly and is not directly perceptible by the person affected (see BVerfGE 120, 274 (331)). This may be the case with regard to the retrieval and transmission of telecommunications traffic data. In view of the weight of the encroachment constituted by this, the discretion of the legislature is reduced insofar as such measures must fundamentally be subjected to judicial authority. Because they are independent from a personal and factual point of view and because they are bound solely by the law, judges can best and most reliably protect the rights of the person affected in the individual case (see BVerfGE 77, 1 (51); 103, 142 (151); 120, 274 (332)). Under Article 10.2 sentence 2 GG, there is an exception for the supervision of encroachments upon the freedom of telecommunications by the intelligence services. Here, a preemptive judicial supervision may be replaced by supervision – equally relating specifically to the measure in question – by an agency or auxiliary agency appointed by parliament (see BVerfGE 30, 1 (21)).

249

The legislature must make provisions defining the requirement of preemptive judicial review in a concrete form with well-defined provisions, and must combine this with strict requirements as to the contents and the grounds on the judicial order (see BVerfGE 109, 279 (358-359)). At the same time, it follows from this that there must be a sufficiently substantiated justification and restriction of the retrieval of the data requested; it is only this that enables the court to exercise effective supervision (see BVerfGE 103, 142 (160-161)). It is only on this basis that the court making the order can and must on its own responsibility form an assessment as to whether the use of the data applied for complies with the statutory requirements. Part of this is a careful review of the requirements of the encroachment, including in particular the threshold of encroachment laid down by statute. The court must justify its order with substantial detail. In addition, the data to be transmitted, in compliance with the principle of proportionality, must be defined sufficiently selectively and clearly (see BVerfGE 103, 142 (151)), in order that the service providers do not have to undertake their own examination of the matter. These service providers may be required and permitted to transmit data only on the basis of clear orders on data transmission.

250

The effectiveness of the supervision also requires that the data, on the basis of the order, must be filtered out by the telecommunications enterprises as third parties with a duty of storage, that is, that the authorities are not given direct access to the data. In this way, the use of the data is referred to the cooperation of a number of actors and thus to decision-making structures which mutually supervise each other.

251

bb) It is also constitutionally required that a legal protection procedure is available to subsequently review the use of the data. Where persons affected had no opportunity before the measure was carried out to defend themselves against the use of their telecommunications traffic data, they must be given the possibility of subsequent judicial review.

252

cc) Finally, a legislative formulation that is not disproportionate also requires effective sanctions for violations of rights. If even serious breaches of the secrecy of telecommunications were ultimately to remain without sanction, with the result that the protection of the right of personality, even in its specific manifestation in Article 10.1 GG, atrophied in view of the intangible nature of this right (see BVerfG, order of the First Chamber of the First Senate of 11 November 2009 – 1 BvR 2853/08 –, juris, marginal no. 21; BGHZ 128, 1 (15)), this would contradict the duty of the state to enable individuals to develop their personality (see BVerfGE 35, 202 (220-221); 63, 131 (142-43)); 96, 56 (64)) and to protect them against third-party threats to the right of personality (see BVerfGE 73, 118 (210); 97, 125 (146); 99, 185 (194-195)); BVerfGK 6, 144 (146)). This might in particular be the case if data obtained without authorisation were permitted to be used without hindrance, or an unauthorised use of the data were routinely to remain without compensation to satisfy the persons affected, for lack of tangible damage.

253

However, in this connection the legislature has a wide legislative discretion. Here, it can in particular consider how far corresponding provisions might be incorporated into the general structure of the law of criminal procedure or into current liability law. In this respect it may also take account of the fact that in the case of serious violations of the right of personality, the current law may already provide both for prohibitions of use on the basis of a weighing of interests (see BVerfGE 34, 238 (248 et seq.); 80, 367 (375-376)); 113, 29 (61); BVerfGK 9, 174 (196); Decisions of the Federal Court of Justice in Criminal Matters – Entscheidungen des Bundesgerichtshofes in Strafsachen (BGHSt) 34, 397 (401); 52, 110 (116)) and for liability for intangible damage (see BVerfGE 34, 269 (282, 285-286); BVerfGK 6, 144 (146-147); BVerfG, order of the First Chamber of the First Senate of 11 November 2009 – 1 BvR 2853/08 –, juris, marginal no. 21; Decisions of the Federal Court of Justice in Civil Matters – Entscheidungen des Bundesgerichtshofes in Zivilsachen (BGHZ) 128, 1 (12)). For the decision as to whether more extensive provisions are needed in this connection, the legislature is not prevented by this from initially considering whether case-law on the basis of applicable law possibly takes sufficient account in the constitutionally required manner of the particular severity of the violation of personality which the unauthorised acquisition or use of the data in question here usually constitutes.

254

4. Less stringent constitutional standards apply to a use of the data stored by way of precaution which is only indirect, in the form of official rights to information from the service providers with regard to the owners of particular IP addresses which the service providers are to identify by use of the stored data. The creation of such rights to information is permissible, independent of restrictive lists of legal interests or criminal offences, to a greater extent than the retrieval and use of the telecommunications traffic data themselves.

255

a) When information on the owners of particular IP addresses can only be determined by resorting to telecommunications traffic data stored by way of precaution, it is not constitutionally necessary to satisfy the particularly stringent requirements which otherwise apply to the use of such data.

256

It is important on the one hand for this purpose that the authorities do not themselves acquire any knowledge of the data to be stored by way of precaution. In connection with such rights of information, the authorities do not themselves retrieve the data that have been stored by way of precaution without cause, but are merely given personal information as to the owner of a particular connection, who is determined by the service providers by recourse to these data. In this connection, the informative value of these data is strictly limited. The use of the data stored by way of precaution only provides the information as to what owner was registered on the Internet with regard to an IP address that is already known, for example where the address has been determined by other investigations. The formal structure of such information is similar in certain respects to the retrieval of the name of the owner of a telephone number. Its informational value is limited in range. It is not possible to carry out systematic investigation over a long period of time or to prepare personality profiles and track people’s movements on the basis of such information alone.

257

It is also crucial that for such information only a small section of the data, which is determined in advance, is used; the storage of these particular data in itself could therefore be ordered subject to far less strict requirements. If solely the Internet access data necessary for such information were stored in order to identify dynamic IP addresses, this would be considerably less burdensome than the virtually complete storage of the data of all telecommunications connections. It follows from considering the combination of these aspects that the requirements which otherwise apply to telecommunications traffic data stored for use by way of precaution do not apply in the same way to such information.

258

b) However, creating official rights to information in order to identify IP addresses is also of substantial weight. In doing this, the legislature influences the conditions of communication in the Internet and limits its anonymity. On this basis, in conjunction with the systematic storage of Internet access data, it is possible to a great extent to establish the identity of Internet users. Where private persons who find that they are injured on the Internet register the relevant IP address and make a criminal complaint, or where the authority itself traces IP addresses, these addresses can be connected to specific owners, and the communication processes of this IP address can be attributed to individuals with substantial probability.

259

But despite a certain similarity, attributing an IP address to the owner of a connection cannot be equated to the identification of a telephone number with regard to its weight for the person affected. Telephone numbers are permanent identifiers, which are exchanged between the users, and therefore it is possible to retrieve the details of their owners even independently of specific telecommunications acts. In contrast, information on the owner of a dynamic IP address necessarily also contains the information that this IP address was used at a particular time, and from what connection it was used. In addition, the telephone number may easily be concealed from private persons, whereas the IP address can basically be concealed only by the use of anonymisation services. The potential relevance to the right of personality of a retrieval of the identity of the owner of an IP address is also different from that of the owner of a telephone number. On the mere basis of the large number of new connections which are made in each case by visiting Internet sites, it has more informative value than a retrieval of telephone numbers. The knowledge that contact to an Internet site has been established also has a different substantive meaning: since the contents of Internet sites, unlike the spoken word in telephone conversations, are electronically fixed and can be retrieved again for a long period, they may often reliably be used to reconstruct the subject with which the communicating person was dealing. The connecting of the IP address to an individual as that person’s “Internet telephone number” thus at the same time gives information on the contents of the communication. The distinction between external connection data and contents of a conversation, which applies to a telephone call, is broken down here. If a visitor to a specific Internet site is identified by information via an IP address, not only is it known with whom the visitor had contact, but normally also what were the contents of the contact.

260

Conversely, admittedly, there is also increased interest in the possibility of being able to attribute communication connections in the Internet to the relevant actors, in order to protect legal interests or to safeguard the legal order. In view of the increasing importance of the Internet for the most varied areas and events of everyday life, the danger increases that it will be used for criminal offences and violations of rights of many kinds. In a state under the rule of law, even the Internet may not be a legal vacuum. It is therefore a legitimate concern for the legislature, where relatively serious violations of rights occur, to be able to relate Internet contacts to individuals. To the extent that telecommunications traffic data must be analysed by the service providers in order to give such information in the current technological conditions, in which IP addresses are predominantly allocated only for an individual session (“dynamically”), this therefore encounters no fundamental objections. In addition, in order to guarantee reliable attribution of these addresses for a certain period of time, the legislature may provide for the relevant data to be retained or for comprehensive recourse to be permitted to data retained in this way by the service providers. In this connection, the legislature has legislative discretion.

261

c) Accordingly, the legislature may permit such information, even independently of restrictive lists of legal interests or criminal offences, for the prosecution of criminal offences, for warding off danger and for the intelligence services to carry out their duties, on the basis of general authorisations to encroach provided by specific branches of law. (see Bock, in: Geppert/Piepenbrock/Schütz/Schuster, Beck’scher Kommentar zum TKG , 3rd ed. 2006, § 113 , marginal no. 7; Graulich, in: Arndt/Fetzer/Scherer, TKG , 2008, § 113 , marginal no. 8). Admittedly, with regard to the thresholds of encroachment, it must be ensured that information may not be obtained at random, but only on the basis of a sufficient initial suspicion or of a concrete danger on the basis of facts relating to the individual case. In this connection, the requirement of a concrete danger based on factual evidence applies to the intelligence services just as to all authorities competent to ward off danger to public security and order. The legal and factual basis of such requests for information must be placed on the record. For information of this kind, however, it is not necessary to provide for a requirement of judicial authority.

262

But the substantial weight of the encroachment made by such information does not permit it to be made available generally and without restrictions to prosecute or prevent every regulatory offence whatsoever. For anonymity in the Internet to be lifted, there must at least be an adverse effect on a legal interest, and the legal system must accord particular significance to this adverse effect in other contexts too. This does not completely exclude such information being given to prosecute or prevent regulatory offences. But they must be regulatory offences that are particularly serious – even in the individual case – and they must be expressly named by the legislature.

263

Nor is there any reason to revoke the principle of transparency (see C V 3 above) for the identification of IP addresses. The person affected, who may as a rule assume that he or she is using the Internet anonymously, has, in principle, the right to learn that this anonymity has been removed, and why. Accordingly, the legislature must at all events provide for duties of notification, insofar as and as soon as this does not frustrate the purpose of the information or other predominant interests of third parties or of the persons affected themselves do not conflict with this. Where, in exceptional cases, in accordance with statutory provisions to this effect, there is no notification, the reason for this must be put on record. However, in this case there is no need for judicial confirmation of the failure to notify.

264

5. The constitutionally required guarantee of data security and of a restriction of the use of data, in well-defined Federal provisions, which satisfies the requirements of proportionality, is an inseparable element of legislation creating a duty of data storage, and it is therefore the responsibility of the Federal legislature, which imposes the duty. In contrast, the responsibility for creating the retrieval provisions themselves and for drafting the provisions on transparency and legal protection depends on the legislative competence for the respective subject-matter.

265

a) Under Article 73.1 no. 7 GG, where questions of data security need to be decided in connection with the duty of the service providers to store telecommunications traffic data by way of precaution without cause, this, as an immediate component of the duty of storage and of the consequences legally associated with this, is the responsibility of the Federation. This includes not only the provisions on the security of the stored data, but also the provisions on the security of the transmission of the data, and in this connection the guarantee of protection of confidential relationships (see above C V 1 and C V 2 e).

266

In addition, the Federation must also ensure that there is a sufficiently precise restriction of the purposes of data use served by the storage which satisfies constitutional requirements. The reason for this lies in the indissoluble constitutional connection between data storage and purpose, as is held in established case-law of the Federal Constitutional Court: Data may from the outset be stored only for particular purposes, relating to a specific area, in precise and well-defined provisions, and it is therefore sufficiently guaranteed at the time of storage that the data will be used only for such purposes as justify the weight of the storage. There can be no abstract justification of storage in itself; it can be justified only where it serves sufficiently important and concretely named purposes (see BVerfGE 65, 1 (46); 118, 168 (187-188)). In contrast, it is not permissible to create a data pool in advance, independent of such purposes, whose use is left to later decisions of various state instances, depending on their requirements and political discretion. In such a case, the constitutionality of the storage could not yet be assessed, for lack of sufficiently foreseeable and restricted purposes, at the date of the encroachment constituted by the storage. In addition, its scope would be neither foreseeable to citizens nor restricted in accordance with the principle of proportionality. In the interaction of the Federation and the Länder too, this substantive connection between storage and purpose of use of the data as the crucial link between encroachment and justification may not be severed. The competence to guarantee this link accrues to the Federation under Article 73.1 no. 7 GG by virtue of factual connection (see above C III 2).

267

The provisions to be made by the Federation in this regard in connection with the storage include drafting the qualified requirements for use of the data for the purpose of criminal prosecution, warding off of danger or preventing danger by the intelligence services under the conditions developed above. They also include the necessary provisions to ensure that the further use of the data remains limited to specific purposes, in particular in the form of duties of labelling and recording.

268

b) In contrast, when the Federation passes provisions on the duty of storage, it does not automatically also have the responsibility as to whether and to what extent the data may be resorted to in connection with the purposes to be provided by the Federation. The passing of provisions governing the retrieval of data itself is no longer fundamentally the responsibility of the Federation, but follows the general rules on legislative competence. According to these, the authorisation to retrieve the data cannot be based on Article 73.1 no. 7 GG, but is to be granted in each case on the basis of the rule on jurisdiction which governs the legislation on the tasks for which the data is to be used (see BVerfGE 113, 348 (368); 114, 371 (385)). In the area of warding off danger and of the duties of the intelligence services, the responsibility is thus largely with the Länder . The constitutionally required restriction of the purposes of use must be provided for concurrently with the storage, by reason of the link between encroachment and justification under data protection law; unlike this, not only the authorisation of retrieval, but also the further constitutional requirements of the formulation of the data use, such as in particular the provisions on the notification of the persons affected and the guarantee of effective legal protection, can and must be left to later acts of legislation of the Länder . In this connection, the Länder themselves bear direct responsibility for the constitutionality of these provisions.

VI.

269

The challenged provisions do not satisfy these requirements. Admittedly, the reason why § 113a TKG conflicts with the fundamental right to protection of the secrecy of telecommunications under Article 10.1 GG is not simply that the scope of the duty of storage under §§ 113a.1 to 113a.7, 11 TKG would have to be considered disproportionate from the outset. But the provisions on data security, on the purposes and the transparency of the use of data and on legal protection do not satisfy the constitutional requirements. In consequence, the whole legislation lacks a structure complying with the principle of proportionality. §§ 113a, 113b TKG and § 100g StPO, insofar as the latter permits the retrieval of the data to be stored under § 113a TKG, are therefore incompatible with Article 10.1 GG.

270

1. § 113a TKG is not unconstitutional merely because of its scope. The legislature may deem the duty of storage created by § 113a TKG, which under § 113a.1 to § 113a.7 extends without cause to virtually all traffic data of publicly accessible telecommunications services, to be suitable, necessary and proportionate in the narrow sense to increase the effectiveness of criminal prosecution and the prevention of danger (see above C IV). Despite its scope, the provision is still sufficiently restricted with regard to the extent of the data covered. As § 113.8 TKG expressly states, the contents of telephone conversations, faxes and emails may not be stored, nor may the websites or service providers which a user has contacted on the Internet. In addition, in § 113a.1, 11 TKG the legislature has provided for a period of storage which is still constitutionally acceptable, given a duration of six months and a period of one month for deletion immediately following this. Similarly, at the present time it cannot be determined that the provision, in combination with other provisions, aims at or results in the creation of a general comprehensive data pool for the greatest possible reconstruction of all activities whatsoever of the citizens. In this connection, importance attaches to the application of the principle of data economy, which in other respects pervades data protection law, and to a large number of duties of deletion, with which the legislature fundamentally endeavours to prevent the creation of avoidable data pools. In this connection, the relevant factors for this assessment are in particular, for example, §§ 11 et seq. of the Telemedia Act (Telemediengesetz – TMG), which fundamentally subject services providers under the Telemedia Act to an obligation to delete data which are not necessary for the statement of costs (see § 13.4 no. 2, § 15 TMG) and in this way, against private-sector incentives too prevent the contents of the use of the Internet from being recorded in general commercial data pools and thus remaining reconstructible. § 113a TKG can therefore not be understood as the expression of a general public provision of data for the future for purposes of criminal prosecution and prevention of danger, but despite its breadth remains a limited exception which attempts to take account of the particular challenges of modern telecommunications for criminal prosecution and prevention of danger.

271

2. In contrast, the guarantee of a particularly high standard of security, which is constitutionally necessary for such a data pool, is missing. In this respect, § 113a.10 TKG only provides the duty, which remains undefined, to ensure by technical and organisational measures that access to the stored data is possible solely for persons who are specially authorised, and apart from this refers only to the care which is necessary in general in the area of telecommunications. There is therefore no provision which takes account of the particularly strict standards required of the security of the extensive and informative data pool under § 113a TKG. §§ 88 and 109 TKG, which are referred to with regard to their contents, do not guarantee such a particularly high security standard, but permit a wide range of relative degrees, corresponding to their wide area of application. This applies in particular to § 109 TKG. Thus, for example, under § 109.1 TKG every service provider must take appropriate technical precautions or other measures to protect the secrecy of telecommunications and the telecommunications and data processing systems against unauthorised access. In this connection, in order to determine the appropriateness, § 109.2 sentence 4 TKG is referred to (see Klesczewski, in: Säcker, Berliner Kommentar zum TKG , 2nd ed. 2009, § 109 , marginal no. 12). This provides that the measures are appropriate if the technical effort and economic expense are in an appropriate proportion to the importance of the rights to be protected. Taking as a basis the standards developed above, these do not sufficiently guarantee the specific requirements of the protection of the data stored under § 113a TKG. The standard laid down by statute of “appropriate technical precautions or other measures” merely requires that “account should be taken” of the state of technological development (see § 109.2 sentence 2 TKG; Klesczewski, in: Säcker, Berliner Kommentar zum TKG , 2nd ed. 2009, § 109 , marginal no. 13), and in doing so qualifies the security requirements in a way that remains undefined by introducing general considerations of economic adequacy in the individual case. In addition, putting this standard in more specific terms is left to the individual telecommunications service providers, which in turn have to offer their services subject to the conditions of competition and cost pressure.

272

Nor is it ensured by statutory orders or by orders of the regulatory authorities that these standards are put into specific terms. In particular, § 110 TKG does not guarantee that adequate security standards apply. Admittedly, the delegated legislation to be passed under this statute (see § 110.2 and 3 TKG) may include aspects of data security. However, this statute – which is primarily determined by technical objectives – neither contains substantive standards, nor does it otherwise take up the aspect of data security. Apart from this, even two years after the duty of storage of § 113a TKG entered into force, the Telecommunications Interception Order (Telekommunikationsüberwachungsverordnung – TKÜV) has not been adapted to take account of the reform of the law. Correspondingly, under § 110.3 TKG, the Technical Guideline for the Implementation of Statutory Measures to Monitor Telecommunications and for Requests for Information for Traffic Data (technische Richtlinie zur Umsetzung gesetzlicher Maßnahmen zur Überwachung der Telekommunikation und zum Auskunftsersuchen für Verkehrsdaten – TR-TKÜV) – published in December 2009 under § 110.3 sentence 3 TKG on the website of the Federal Network Agency (see Federal Network Agency, Amtsblatt 2009, p. 4706) – will come into effect only one year after this adaptation (see Inhaltsangabe 1 (Regelungsbereich) TR-TKÜV; Teil B 1 (Grundsätzliches) TR-TKÜV).

273

Nor does § 109.3 TKG guarantee sufficient data security. Admittedly, the statute provides that operators of telecommunications equipment must appoint security officers and prepare a security policy, which must be submitted to the Federal Network Agency. In addition, the policy must be adjusted and resubmitted later if the “circumstances” on which it is based are changed. However, this does not reliably guarantee a particular high security standard. Thus, for example, the provision only applies to equipment operators, but not to all the persons targeted by § 113a TKG, which also applies to other service providers. In addition, § 109.3 TKG refers substantively only to the insufficient requirements of § 109.1 and 109.2 TKG. Nor is a continuing and verifiable adaptation of the security standard to the state of the art in technology guaranteed by well-defined provisions. In this connection, it is not clear whether § 109.3 sentence 4 TKG also requires an adaptation to the technological development of protective measures and to developing legal security standards. At all events, there is no obligation for a periodical updating of the security policy which could enable effective supervision in this respect.

274

Nor can § 9 of the Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG) in conjunction with the relevant schedule compensate for the absence of adequate security standards in the Telecommunications Act. Notwithstanding its high standards, some of which are abstract, this provision, which in any case may only be applied in the alternative (see Fetzer, in: Arndt/Fetzer/Scherer, TKG , 2008, before § 91, marginal no. 10; Klesczewski, in: Säcker, Berliner Kommentar zum TKG , 2nd ed. 2009, § 91 marginal no. 15), is too general to ensure in a sufficiently specific and reliable manner the particularly high security standards with regard to the data to be stored under § 113a TKG.

275

All in all, therefore, there is no guarantee in a binding form and in well-defined provisions of a particularly high security standard for the data to be stored under § 113a TKG. Neither are the instruments cited by the experts in the present proceedings as central elements (separate storage, asymmetric encryption, the four-eyes principle in conjunction with advanced authentication procedures for access to the keys, revision-proof recording of access and deletion) imposed on the persons with a duty of storage in an enforceable manner, nor are other precautions which guarantee a comparable level of security imposed on them. Nor is there a balanced system of sanctions that attributes no less weight to violations of data security than to violations of the duties of storage themselves. The range of administrative fines for non-compliance with the duties of storage is markedly broader than that for the violation of data security (see § 149.2 sentence 1 in conjunction with § 149.1 nos. 36 and 38 TKG). The current legal situation therefore does not satisfy the constitutional requirements of the security of a data pool as is created by § 113a TKG.

276

3. The provisions on transmission and use of the data under § 113b sentence 1 half-sentence 1 TKG do not satisfy the constitutional requirements.

277

a) Firstly, the provisions on the use of the data for criminal prosecution are incompatible with the standards developed from the principle of proportionality.

278

aa) § 113b sentence 1 no. 1 TKG in conjunction with § 100g StPO does not satisfy the particularly stringent requirements which must be satisfied for access to the data stored under § 113a TKG to be permitted. Admittedly, in these provisions the legislature has laid down a sophisticated objective of data use for criminal prosecution which is also, pursuant to Article 74.1 no. 1 and Article 72.1, final. Here, however, the legislature permits similar standards to apply for the use of the data as have applied until now for the collection of telecommunications traffic data which the service providers were entitled to store under § 96 TKG depending on their operational and contractual requirements to a more limited extent and in such a way that the individual could in part contract out of this. This does not take sufficient account of the particularly serious encroachment constituted by the systematic precautionary data storage without cause of § 113a TKG.

279

Even § 100g.1 sentence 1 no. 1 StPO does not ensure that in general and also in the individual case only serious criminal offences may be the occasion for collecting the relevant data, but – independently of an exhaustive list – merely generally accepts criminal offences of substantial weight as sufficient. § 100g.1 sentence 1 no. 2, sentence 2 StPO satisfies the constitutional standards even less, in that it accepts every criminal offence committed by means of telecommunications, regardless of its seriousness, as the possible trigger for data retrieval, depending on a general assessment in the course of a review of proportionality. This provision makes the data stored under § 113a TKG usable with regard to virtually all criminal offences. As a result, in view of the increasing importance of telecommunications in everyday life, the use of these data loses its exceptional character. Here, the legislature no longer confines itself to the use of data to prosecute serious criminal offences, but goes far beyond this, and thus also beyond the objective of data storage specified by EU law, which also in turn is restricted to the prosecution of serious criminal offences, without including the prevention of danger. Admittedly, a use of these data can be very useful, especially for the prosecution of criminal offences committed by means of telecommunications, and therefore restricting it may in some cases make their successful investigation more difficult or even impossible. However, it is in the nature of the guarantee of Article 10.1 GG and of the proportionality standards associated with this that not every measure that is useful, and in the individual case may also be necessary, for criminal prosecution is constitutionally permissible. Conversely, as a consequence of the standards that are decisive here, telecommunications do not in their entirety become a legal vacuum, even in the area of less serious criminal offences: the legislature may provide that information under § 113.1 TKG – including information indirectly using the data stored under § 113a TKG – is available for the investigation of all criminal offences (see above C V 4 c). Similarly, as a result of this, recourse under § 100g StPO to telecommunications traffic data stored otherwise than under § 113a TKG remains possible.

280

bb) In addition, § 100g StPO fails to comply with the constitutional requirements in that it fundamentally permits retrieval of data even without the knowledge of the person affected (§ 100g.1 sentence 1 StPO). The constitutional requirements of the transparency of use of data only permit the data stored under § 113a TKG to be collected secretly if this is necessary for reasons carrying more weight which must be more precisely defined by statute, and if it is judicially ordered.

281

cc) Nor does the formulation of the duty of notification in every respect comply with the standards developed above. However, the extent of the duties of notification provided for is not as such open to any constitutional objections. §§ 101.1, 101.4 and 101.5 StPO, in conformity with the case-law of the Federal Constitutional Court (see BVerfGE 109, 279 (363 et seq.)), provides for complex provisions which balance the principle of subsequent notification of the person affected, in a manner which is constitutionally workable, with predominant concerns which exceptionally arise in the individual case. Another aspect which is unobjectionable in this context is the fact that under § 101.4 sentence 4 StPO, persons affected to whom the retrieval of data did not apply are not to be notified in every case, but only in accordance with a weighing of interests. In this weighing of interests, the interests of persons indirectly affected can and must be taken sufficiently into account.

282

In contrast, the provisions on judicial review for cases in which a notification may be omitted are inadequate. § 101.6 StPO provides for judicial review only when notification is deferred under § 101.5 StPO, but not when there is no notification, under § 101.4 StPO. This does not take sufficient account of the high value of the notification for transparent use of the data stored under § 113a TKG. Where data retrieval relates directly to traffic data of a specific person, that person absolutely must be subsequently notified unless there is a judicial review of the relevant grounds for an exception. Such a judicial review is missing in the cases in which there is to be no notification under § 101.4 sentence 3 StPO by reason of predominant concerns of a person affected.

283

dd) In contrast, the judicial review of data retrieval and data use is itself guaranteed in a manner that complies with constitutional requirements. Under § 100g.2 sentence 1, § 100b.1 sentence 1 StPO, the collection of the data stored under § 113a TKG requires a judicial order. Nor does the judicial order authorise the authorities to have direct access to the data; instead, it obliges the service providers to filter them out and transmit them, in a separate intermediate process in compliance with the order. In addition, under § 101.1, 101.7 sentences 2 to 4 StPO there is the possibility subsequently to arrange a judicial review of the lawfulness of the measure. It is not apparent that these provisions do not, as a whole, guarantee effective legal protection.

284

However, the statutory provisions on the formal requirements of the judicial order are not formulated in sufficiently well-defined provisions. § 100g.2 in conjunction with § 100b.2 StPO merely lays down the minimum requirements of the operative part of the order; apart from this, the general obligation to give reasons for a decision applies to decisions under § 34 StPO. In revising the legislation, the legislature should consider whether it would be appropriate to emphasise the strict requirements of a substantiated justification of judicial orders (see BVerfGE 103, 142 (151); 107, 299 (325); 109, 279 (358-359)) by way of a special and tailor-made provision. At all events, it must be ensured by statute that the extent of the data to be transmitted is described in the judicial order sufficiently selectively and unambiguously for the service providers, in a manner that satisfies the principle of proportionality.

285

b) The challenged provisions also fail to satisfy the constitutional requirements with regard to the retrieval and use of the data stored under § 113a TKG for warding off danger and for the tasks of the intelligence services. The very structure of § 113b sentence 1 nos. 2 and 3 TKG does not satisfy the requirements of sufficient limitation of the purposes of use. In this provision, the Federal legislature contents itself with sketching in a merely general manner the fields of duty for which data retrieval is to be possible, without stating the purposes of use in concrete terms. Instead, it leaves the purposes of use to be defined in concrete terms by later legislation, including in particular Länder legislation. In this way the Federal legislature does not satisfy its responsibility for the constitutionally required limitation of the purposes of use. If it orders that telecommunications traffic data are to be stored, it is at the same time obliged to lay down additionally in a binding form the purposes of use and thresholds of encroachment that are necessary to constitutionally justify the storage, and to bindingly lay down the consequential provisions that are necessary to guarantee that the use is limited to specific purposes. § 113b half-sentence 1 TKG contains no such provisions. Instead, because the service providers have a duty of precautionary storage of all telecommunications traffic data, and at the same time these data are released to be used by the police and the intelligence services as part of almost all their tasks, a data pool is created open to manifold and unlimited uses to which – restricted only by broad objectives – recourse may be had, in each case on the basis of decisions of the Federal and Länder legislatures. The supply of such a data pool with an open purpose removes the necessary connection between storage and purpose of storage and is incompatible with the constitution (see above C V 5 a).

286

In contrast, there is no objection to the fact that § 113b TKG contains no comprehensive provisions on duties of notification or on judicial review for the case where data stored under § 113a TKG are used to the purposes of warding off danger and of the carrying out of their duties by the intelligence services. Admittedly, such provisions are constitutionally essential. However, the Federal legislature was entitled to leave these provisions connected with the retrieval of the data to be formulated in each case by the specialised legislation and thus, where appropriate, also by Land legislation.

287

c) Another aspect under which the formulation of the use of data stored under § 113a TKG is disproportionate is that there is no protection whatsoever of confidential relationships with regard to the transmission. At least for a narrowly defined group of telecommunications connections which rely on particular confidentiality, such a protection is fundamentally required (see above C V 2 e, at the end).

288

4. Finally, § 113b sentence 1 half-sentence 2 TKG, which provides for an indirect use of the data stored under § 113a TKG for information of the service providers under § 113.1 TKG, also does not satisfy the requirements of proportionality in every respect.

289

By the standards developed above, however, there are no constitutional objections to the fact that in § 113b sentence 1 half-sentence 2 TKG the legislature does not subject information on the owners of particular IP addresses already known to the authorities to the particularly stringent requirements which have to be satisfied for a direct retrieval of the data stored under § 113a TKG. It is therefore unobjectionable that under § 113b sentence 1 half-sentence 2 TKG in conjunction with § 113.1 TKG such information is permissible, without a prior judicial order, for the prosecution of criminal offences of every kind and in general for the tasks of warding off danger and of the intelligence services. However, the provision is not quite unambiguous with regard to the necessary encroachment thresholds. But when it is interpreted in conformity with the Basic Law, it can be understood to the effect that § 113.1 TKG refers to the relevant bases for encroachment in the specialised legislation, and that for access to the data it requires at least sufficient probable cause under §§ 161, 163 StPO or a concrete danger within the meaning of the blanket clauses in Länder police law (see Bock, in: Geppert/Piepenbrock/Schütz/Schuster, Beck’scher Kommentar zum TKG , 3rd ed. 2006, § 113 , marginal no. 7; Graulich, in: Arndt/Fetzer/Scherer, TKG , 2008, § 113 , marginal no. 8). For information requests by the intelligence services too, the encroachment threshold of the concrete danger must be derived from the provision, interpreted in conformity with the Basic Law.

290

Any abuse of the provision to circumvent § 100g StPO may also be countered by the way of interpretation in conformity with the Basic Law. Understood in the sense of the Basic Law, § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG does not authorise open retrieval by the authorities of the names of owners whose telecommunications connections are not known to them. Instead, corresponding to its objective as expressed in the legislature’s statement of intention, it permits only information on individual IP addresses already known to the authorities (see Bundestag printed matter 16/6979, p. 46). In the necessary reform of the law, the legislature may review whether it finds occasion to clarify this by statute. In this connection, however, § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG is not found to be unconstitutional.

291

Nevertheless, § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG is too broad from the aspect of proportionality in that in general it regards the punishment of regulatory offences too as sufficient to justify such retrieval. Admittedly, under the standards developed above, the legislature is not as a matter of principle prevented from employing such information even in the field of regulatory offences in particularly important cases (see above C V 4 c). However, this requires special well-defined provisions, which are lacking in the present statute. In addition, § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG is also unconstitutional in that there are no provisions for notification of the persons affected. Under § 113.1 sentence 4 TKG, the persons with a duty to give information must observe secrecy towards the persons affected, and there is also no guarantee that the authorities seeking information will be notified. This does not satisfy the constitutional requirements of transparent use of the data stored under § 113a TKG (see above C V 3 a).

292

5. In summary, neither the framework established by law for data security nor the provisions on the use of data under § 113b sentence 1 no. 1 TKG in conjunction with § 100g StPO, § 113b sentences 1 nos. 2 and 3 TKG and § 113b sentence 1 half-sentence 2 TKG satisfy the constitutional requirements. Consequently, the duty of storage under § 113a TKG itself also lacks a constitutionally workable justification. The challenged provisions are therefore in their totality incompatible with Article 10.1 GG.

VII.

293

In contrast, the challenged provisions do not give rise to any constitutional objections with regard to Article 12.1 GG, to the extent that a decision has to be made in these proceedings in this respect. The occupational freedom of the fourth complainant in the proceedings 1 BvR 256/08 is not violated by the challenged provisions and the associated financial burden.

294

1. However, the imposition of duties of storage which affect the complainant at least insofar as it itself operates a publicly accessible anonymisation service, is an encroachment upon its occupational freedom. As the commercial supplier of an anonymisation service, it may invoke occupational freedom under Article 12.1 GG. In addition, the provision has an objective tendency to regulate an occupation or profession. The duties of storage are addressed to such service providers as generally offer publicly accessible telecommunications services for end users in return for payment (see § 113a.1, § 3 no. 24 TKG) and therefore to service providers which at all events typically offer the services for commercial purposes.

295

The encroachment is the regulation of the practice of an occupation or a profession. § 113a TKG provides for a duty of storage, and in § 113b sentence 1 half-sentence 1 TKG for a duty of transmission; these duties are presented as technical requirements for the provision of telecommunications services. In contrast, when it is submitted that the duty of storage has the effect of the regulation of a choice of occupation on anonymisation services because it is no longer possible to offer absolute anonymisation, this is mistaken. It is true that the regulation of a choice of occupation comes into consideration not only when access to an occupation or profession is legally restricted, but also when the meaningful exercise of an occupation or profession is effectively made impossible (see BVerfGE 30, 292 (313)). However, the duty of storage under § 113a.6 TKG does not result in it being fundamentally no longer possible to operate anonymisation services. The anonymisation services may continue to offer their users the possibility of surfing the Internet without the possibility of their IP addresses becoming known to private persons. In this way they make it possible for users who have a static (and therefore open) IP address to conceal their identity, and they protect other users against hackers or other illegal access. The anonymity is only lifted vis-à-vis the state authorities, and here only if a retrieval of data is exceptionally permitted under the narrow requirements for the direct use of the traffic data stored under § 113a. This therefore only deters customers whose interest in anonymisation is directed towards the authorities which conduct investigations in particularly serious cases. This does not vitiate the offer of an anonymisation service in its entirety.

296

2. The encroachment created by the imposition of the duties of storage is constitutionally justified. It is not disproportionate, either with regard to the technical effort or with regard to the associated financial burdens.

297

Encroachments upon the freedom to practise an occupation or a profession must be justified by sufficient reasons of the public interest (see BVerfGE 94, 372 (390); 101, 331 (347); 121, 317 (346)). Here, in principle, rational reasons of general welfare are sufficient (see BVerfGE 7, 377 (405-406); 16, 286 (297); 81, 156 (189); established case-law). Here too the requirements of the principle of proportionality apply, that is, the encroachment must be suitable to achieve the objective of the encroachment, necessary and proportionate in the narrow sense. These requirements are satisfied in the present case.

298

a) The duties of storage and transmission are also justified with regard to the encroachment upon occupational freedom by the objective of increasing the effectiveness of criminal prosecution, of warding off danger and of the duties of the secret services. They are thus based on rational reasons of general welfare, which they are suitable to promote. A less encroaching provision that is as effective and is cost-effective for the state is not apparent. Since the privatisation of the telecommunications sector, telecommunications traffic data are no longer collected by the state, and therefore the state itself is not in the position to store data directly. A transmission of all connection data to the state in order that the state itself stores them is out of the question, in the first instance because of the risks entailed both for the protection of telecommunications secrecy and for the security and completeness of the data. In addition, when there are adverse effects on an occupation as the result of the imposition of cost burdens or costly obligations, the necessity does not cease to apply simply because financing the relevant task from public funds would be a more lenient means for those affected (see BVerfGE 81, 156 (193-194); 109, 64 (86)). More lenient means are not those which merely shift a cost burden (see BVerfGE 103, 172 (183-184); 109, 64 (86)).

299

b) The imposition of a duty of storage is not typically excessively burdensome for the service providers affected.

300

aa) The duty of storage does not cross the boundary of permissibility by reason of the technical effort it requires from the service providers. Since the service providers in question are actors on the telecommunications market, they must in any case display a high degree of mastery of technology in the area of the collection, storage and processing of telecommunications data. Even small enterprises in this sector must have these abilities. In addition, at all events a large part of the data to be stored under § 113a TKG are in any case temporarily stored by the relevant telecommunications enterprises for their own purposes. Exacting organisational requirements for the guarantee of data security do not arise merely from the duty of storage of § 113a TKG, but independently of this from the subject matter of the services offered by the relevant enterprises. In this respect, the imposition of the specific duties under § 113a TKG is not disproportionate from a technical and organisational point of view.

301

bb) Nor is the duty of storage disproportionate with regard to the financial burdens incurred by the enterprises as a result of the duty of storage under § 113a TKG and the duties consequential on this, such as the guarantee of data security. In particular, this is not unreasonable because as a result private enterprises would impermissibly be entrusted with state functions. A categorical separation of “state functions” and “private functions”, with the result that it would be impermissible to commission private persons for the purposes of public interest at their own cost, cannot be derived from the Basic Law. On the contrary, the legislature has a broad discretion as to what duties to ensure public interests it will impose on private persons in their work (see BVerfGE 109, 64 (85)). In principle, it may impose burdens and measures to safeguard public interests for which legislation is necessary as a result of commercial activities on the relevant actors in the market, in order in this way to integrate the associated costs in the market and the market price. Here, the legislature is not restricted to engaging private persons only if their occupation may directly cause dangers or if they are directly liable for these dangers. Instead, it is sufficient in this connection if there is a close relationship in subject-matter and in terms of responsibility between the person’s occupation and the duty imposed (see BVerfGE 95, 173 (187)).

302

There are therefore no fundamental objections to the cost burdens incurred by the persons with a duty of storage. In this way, the legislature shifts the costs associated with the storage as a whole onto the market, corresponding to the privatisation of the telecommunications sector. Just as the telecommunications enterprises can use the new opportunities of telecommunications technology to make profits, they must also assume the costs of containing the new security risks that are associated with telecommunications and must include them in their prices. The duties imposed on the enterprises are closely connected to the services rendered by them and can as such only be performed by themselves. In addition, it is not the case here that special sacrifices are imposed on individual service providers, but instead the basic conditions of the provision of telecommunications services are structured in a general way. It is thus constitutionally unobjectionable if the enterprises then also in principle bear the costs incurred by this. Reimbursement is not required to be provided merely because the objective relates to the public interest (see BVerfGE 30, 292 (311)). A statute which governs the practice of an occupation in such a way that it imposes duties on private persons in the exercise of their occupation and in doing so normally affects a large number of persons is not disproportionate simply because it unreasonably burdens individual persons affected, but only if it violates the prohibition of disproportionate measures for a large group of persons affected (see BVerfGE 30, 292 (316)). As to the suggestion that the cost burdens arising in this manner have suffocating effects, this has neither been submitted with substantiation nor is it apparent.

303

It is therefore not necessary to review further whether with regard to particular groups of cases (see BVerfGE 30, 292 (327)) or special situations hardship provisions are necessary from the point of view of proportionality. For at all events the submissions of the fourth complainant in the proceedings 1 BvR 256/08 do not support this in any way. In particular, with regard to anonymisation services, the fourth complainant did not provide evidence of a burden exceeding that of the other telecommunications enterprises either for itself or for other providers of such services in a sufficiently comprehensible manner supported by specific figures. But it is only if this were done that it could be established that the scope of legislative discretion was exceeded when the anonymisation services were engaged. As long as the legislature’s assessment is called into question only by assumptions and allegations, the Federal Constitutional Court cannot pursue this question (see BVerfGE 114, 196 (248)).

304

Nor is the duty of transmission under § 113b sentence 1 no. 1 TKG in conjunction with § 100g StPO subject to any fundamental objections with regard to possible remaining cost burdens; the legislature has provided provisions on compensation in this connection (see § 23.1 Court Payment and Reimbursement Act (Justizvergütungs- und -entschädigungsgesetz – JVEG). the claims for reimbursement here provided are not the subject of the present proceedings.

VIII.

305

Apart from this there are also no more extensive requirements of the challenged provisions arising from the fundamental rights, insofar as the violation of those rights has been permissibly challenged.

IX.

306

The violation of the fundamental right to protection of the secrecy of telecommunications under Article 10.1 GG makes §§ 113a and 113b TKG void, as it does § 100g.1 sentence 1 StPO insofar as traffic data under § 113a TKG may be collected under this provision. The challenged norms are therefore to be declared void, their violation of fundamental rights having been established (see § 95.1 sentence 1 and § 95.3 sentence 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). Accordingly, the telecommunications traffic data collected by the service providers under requests for information on the basis of the temporary injunction of 11 March 2008 and 28 October 2008 but provisionally not transmitted to the requesting authorities, which are stored, must be deleted without delay. They may not now be transmitted to the requesting agencies.

307

The decision on the reimbursement of expenses is based on § 34a.2 of the Federal Constitutional Court Act.

308

With regard to the questions of European law, the formal constitutionality and the fundamental compatibility with the Basic Law of the precautionary storage of telecommunications traffic data, the decision is unanimous. With regard to the assessment of §§ 113a and 113b TKG as unconstitutional, it was passed by seven votes to one as regards its result, and with regard to further questions of substantive law it was passed by six votes to two, to the extent shown in the dissenting opinions.

309

The Senate decided by four votes to four that the provisions are to be declared void under § 95.3 sentence 1 of the Federal Constitutional Court Act, and not merely incompatible with the Basic Law. Accordingly, it is not possible for the provisions to continue in effect in a restricted scope; instead, the statutory consequence is an annulment.

Papier

Hohmann-Dennhardt

Bryde

Gaier

Eichberger

Schluckebier

Kirchhof

Masing

Dissenting opinion of Justice Schluckebier

to the judgment of the First Senate of 2 March 2010

– 1 BvR 256/08 –

– 1 BvR 263/08 –

– 1 BvR 586/08 –

310

Due to the considerations outlined below, I cannot agree with the decision as regards its result and large parts of its reasoning.

311

The Senate holds that the storage of the traffic data has the effect of a particularly serious encroachment upon the fundamental right under Article 10 GG. In my view, particular weight must indeed be attributed to such an encroachment; as compared to content-related surveillance measures, however, it proves to be considerably less serious (on this, see I.). In view of the objectives pursued by the legislature, in particular the investigation of criminal offences that even in an individual case are of substantial importance or have been committed by means of telecommunications but are difficult to investigate, I furthermore regard the encroachment caused by the storage of the traffic data and by the provisions on access under the law of criminal procedure as fundamentally justified under constitutional law. In my view, the provisions on which the encroachment is based essentially stand up to a review of proportionality in the narrow sense, and especially to a review of appropriateness and reasonableness (on this, see II.). Merely the requirements in terms of content placed on the guarantee of the data security of the telecommunications traffic data to be stored and transmitted are excluded from this; in this respect, I concur with the majority of the Senate, without taking up this aspect again in the following. As regards the pronouncement of the legal consequences, the challenged provisions should, on the basis of the Senate majority’s evaluation, not have been declared void in my view; in accordance with the temporary injunctions issued by the Senate, they should have been regarded as applicable until the adoption of new provisions (on this, see III.).

I.

312

The majority of the Senate considers the storage of the traffic data by the service providers for a period of six months as a particularly serious encroachment upon the fundamental right of Article 10.1 GG. I do not agree with this weighting.

313

The secrecy of telecommunications protects the contents and the circumstances of the act of communication against state authority gaining knowledge of them (see BVerfGE 100, 313 (358); 106, 28 (37); 107, 299 (312-313)). If the private service providers’ obligation to store data (§ 113a TKG) is ascribed the nature of an encroachment because the service providers are “helpers of the state” and the storage must therefore be attributed to the state, the circumstance that before a possible access by state agencies, the data exclusively remain in the sphere of the private service providers attains special importance for the assessment of the intensity of the encroachment. The data are in the hands of the party to the contract on which those who make use of the services place the fundamental confidence, which must be assumed where contracts of this kind are concluded, that this party will treat the data that arise for operational reasons and for billing with strict confidence and guarantee their protection. If, furthermore, an appropriate, state-of-the-art level of data security is guaranteed, there is thus also no objectifiable basis for the assumption that the citizen could feel intimidated as a result of the storage, which would increase the intensity of the encroachment, or, in the words of the judgment, of a “sense of being permanently monitored” and of a “diffuse sense of threat”. Moreover, storage does not take place secretly but on the basis of a law that has been made public. The object of the storage is not the contents of acts of telecommunication. Insofar as the traffic data, to a limited extent, also permit conclusions regarding such contents or even make it possible to track people’s movements or to create social profiles, this concerns the issue of the proportionality of the corresponding provisions on access and of the compliance with the requirements of proportionality on the level of the application of the law. The fact that such uses, which can constitute an intensive encroachment in individual cases, are possible if sufficiently weighty reasons exist does not justify attaching to such uses, which in an overall assessment prove to be exceptional cases, decisive importance in the weighting of the storage and to unrestrictedly base the weighting on them.

314

In its judgment of 12 March 2003 (BVerfGE 107, 299 (322)) on the delivery of telecommunications connection data which referred to telephone calls, the Senate already emphasised that the weight of the encroachment – in that case, of the encroachment caused by the data retrieval – was minor than that of telephone surveillance related to the contents of communication but that it was nevertheless high. It is true that the circumstances of the present case are special as regards the far-reaching effects and the precautionary character of the obligation to store data. However, when the encroachment is weighted, a perceptible distance must be observed to particularly serious encroachments such as those that occur in the acoustic surveillance of living quarters, in the online search of IT systems, but also in the monitoring of the contents of telecommunications and their evaluation by the direct access of state bodies ; in the case of these encroachments, there is a particular risk that the core area of private life, which enjoys absolute protection, is affected, something which is not the case with the encroachments dealt with here. However, from the perspective of the individual subject of fundamental rights who is affected, the collection of the traffic data of all telecommunications contacts by the private service providers without state authority gaining knowledge of them, and the possibility of their retrieval, which is provided separately under strict substantive preconditions, retrieval which, as a general rule, is revised, on the level of the application of the law, by the judge ordering the storage and is strictly limited, and takes place under procedural safeguards such as the ones provided for data collection pursuant to § 100g StPO, do not constitute an encroachment upon fundamental rights encroachment which is of such weight that it would be justified to classify it as “particularly serious” and thus as one of the greatest encroachments on the fundamental right which are imaginable. What remains, accordingly, is an encroachment due to the storage by the private service provider which can be characterised as particularly weighty. This differentiation attains its ulterior significance with regard to the review of the appropriateness of the challenged provisions.

II.

315

In derogation of the Senate majority’s assessment, the challenged provisions on the duty to store traffic data and to collect them for purposes of the prosecution of criminal offences are not inappropriate, and they are reasonable for the persons affected and thus proportionate in the narrow sense.

316

1. The provisions take sufficient account of the precept of appropriateness and of reasonableness as a result of the principle of proportionality. On the basis of an overall weighing of the seriousness of the encroachment upon Article 10.1 GG and the weight of the reasons that justify it, it becomes apparent that the legislature has respected the limits resulting from this precept.

317

The precept of proportionality in the narrow sense requires that in an overall assessment, the seriousness of the encroachment may not be out of proportion to the weight of the reasons justifying it (see BVerfGE 90, 145 (173); 92, 277 (327); 109, 279 (349 et seq.); 115, 320 (345)). In the conflicting relationship between the state’s duty to protect legal interests and the individuals’ interest in the safeguarding of their rights guaranteed by the constitution, it is the initial task of the legislature to proceed in an abstract manner and achieve a balance between the conflicting interests (see BVerfGE 109, 279 (350); 115, 320 (346)). In doing this, it has latitude for assessment and drafting, something the majority of the Senate also essentially assumes according to its choice of terminology.

318

When assessing the appropriateness of the provision under constitutional law, one has to consider, as a starting point, that the fundamental rights are not confined to warding off state encroachment. Due to their objective-law dimension, the duty of the state to protect the citizens from their rights being infringed results from them. This duty to protect includes the duty to take suitable measures in order to prevent injury to legal interests or to investigate such injury if necessary, to attribute responsibility for injuries to legal interests and to restore legal peace (see Jutta Limbach, Anwaltsblatt – AnwBl 2002, p. 454). In this sense, guaranteeing the protection of citizens and of their fundamental rights and the foundations of the community, and the prevention and investigation of serious criminal offences, are all among the requirements for peaceful coexistence and the citizens’ untroubled enjoyment of their fundamental rights. The effective investigation of crimes and effective warding off of danger are therefore not in themselves a threat to the freedom of citizens; they are however, impermissible without any restraints and limits. They are indicated within the bounds of what is appropriate and reasonable in order to secure that inter alia the fundamental rights are made use of and in order to protect the individual’s legal interests. In the state under the rule of law, the citizen must be able to rely on effective protection by the state just as much as on protection against the state (see Di Fabio, Neue Juristische Wochenschrift 2008, p. 421 (422)). Accordingly, the Federal Constitutional Court has described that state as power guaranteeing peace and stability under the constitution (verfasste Friedens- und Ordnungsmacht ) and has recognised the security of its citizens, which it must guarantee, as a constitutional value that is of equal rank with other such values and is indispensable because the state as an institution derives its justification inter alia from it (see BVerfGE 49, 24 (56-57); 115, 320 (346)).

319

As regards the balancing of the conflicting interests by the legislature, which must create the legal foundations for the investigation of criminal offences and for warding off danger, it must furthermore be taken into account that it is reasonable to expect the individuals, as regards their relation and their commitment to the community, to tolerate certain impairments which serve the protection of other citizens’ legal interests and fundamental rights, but also the individuals’ own protection (see BVerfGE 4, 7 (15); 33, 303 (334); 50, 166 (175)). Also with a view to this, the legislature must be granted discretion for the balancing which is its duty, so that it can protect, on the one hand, the liberty rights of the subjects of fundamental rights, while creating, on the other hand, the legal framework conditions which make it possible to ensure an effective legal protection of the citizen’s legal interests and fundamental rights against injury, and to investigate criminal offences, with appropriate and reasonable means.

320

2. In establishing the duty to store telecommunications traffic data for a period of six months, a provision as to the purpose of use and a criminal-procedure provision for collection of data, the legislature has remained within the legislative limits accorded to it under the constitution. With a view to the fundamental rights and legal interests to be protected, the impairment of the telecommunication participants affected by the storage of traffic data is not inappropriate and unreasonable; on the other side of the balance which must be found are the legislative weighting of the protection of the legal interests of individuals and of the general public which are injured by criminal offences and the warding off of dangers in this respect in an age of a very far-reaching expansion of the possibilities of electronic communication, which often leaves little or no trace. This view is basically held by the majority of the Senate as well; however, it only takes this aspect into account when evaluating the question of the suitability and necessity of the provisions without explicitly integrating it into a review of appropriateness which really sees the interests affected “in relation to each other”.

321

a) The latitude for drafting which the legislature primarily has when establishing a balance, in an abstract manner, between the legal and other interests in the conflicting relationship of “freedom and security” (see BVerfGE 109, 279 (350); 115, 320 (346)) is also influenced by the special character of the subject-matters which are to be regulated, and by the reality to which the provision must do justice. Therefore, the purpose and the effectiveness of the provisions must also be taken into account when assessing appropriateness and reasonableness.

322

Through the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC, the legislature fundamentally changed the system of the methods of undercover investigation under the law of criminal procedure. In doing so, it proceeded with great care, relying on expert opinions requested by it, on an extensive discussion among legal scholars, and also on empirical reports from the public prosecution authorities and police authorities (see Bill, Bundestag printed paper 16/5846, p. 1). Detailed hearings of experts took place in the parliamentary procedure (see the records of the 73rd and 74th meeting of the German Bundestag’s Committee on Legal Affairs, 16th electoral term, on 19 and 21 September 2007). Moreover, it was intended to implement the Federal Constitutional Court’s case-law existing to date. Finally, the Act was approved by a very broad majority (see Minutes of plenary proceedings of the German Bundestag, 16th electoral term, 124th session on 9 November 2007, p. 13009 (D); see also the speech by Federal Minister of Justice Brigitte Zypries introducing the bill, loc. cit. , Minutes of plenary proceedings pp. 12994-12995). The legislature intended to take new technical developments into consideration because it considered precisely the measures at issue here particularly effective in the investigation especially of crime that is difficult to investigate, of transaction crime, white-collar crime and criminal offences committed using modern communication technologies (see Bill, Bundestag printed paper 16/5846, p. 2). Furthermore, it was [the legislature’s] declared goal to take account of the irrefutable needs of an effective, constitutional administration of criminal justice, whose task it is to achieve justice and legal peace within the limits that are set to it. This goal cannot be achieved unless the facts necessary for the investigation can be ascertained (loc. cit. , p. 22). In this connection, the legislature assumed that telecommunications traffic data above all, because of the technical development towards more flat-rate connections – and unlike in the past, when especially call data regarding telephony were available for many months –are either not stored at all or are deleted before a judge’s order for the issuing of information can be obtained, or even before the information necessary for an application for such an order has been ascertained (loc. cit. , p. 27). Apart from this, it is generally known that criminal offences are committed on and through the Internet itself. Reality in society, which includes the existence of crime, is reflected also in this context in the different branches of telecommunication. If the legislature reacts on this, but if what is necessary according to its assessment is only possible in an efficient manner if the corresponding traffic data are subject to an obligation of storage for a certain period of time which the legislature imposes on the service providers, this is essentially not inappropriate, and it is reasonable for the subjects of fundamental rights whose data are concerned. Such provision exists in other areas of the legal system as well, for example, without this being directly comparable, in the field of the obligations of residents to register or as regards the retention of what is known as master account data by the banks (on this see § 24c of the Banking Act (Kreditwesengesetz – KWG); BVerfGE 118, 168).

323

The activity report 2008/2009 of the Federal Network Agency, which shows the development of the number of different types of access to voice and other data communication in recent years, confirms in a certain way that the approach chosen by the legislature is not unbalanced. The report impressively proves the enormous rates of increase of lines but above all of the volumes of speech and data exchanged in the network. It proves that a fundamental change of the communicative behaviour of people has taken place in recent years (see loc. cit., for example p. 38 on digital subscriber lines, p. 50 on the subscriber development in mobile telephone networks, p. 53 on the speech volume in mobile telephone communication and the rates of increase in flat rate billing, p. 59 on the volume of traffic via broadband lines).

324

Under these circumstances, the legislature, in order to protect the legal interests of the victims of criminal offences, essentially cannot be denied taking the effectiveness of the means provided by it into consideration and to adapt to the changed situation also by obliging the service providers to store and retain traffic data in their sphere for a certain period of time. In this context, the state bodies’ keeping pace with technical progress cannot merely be seen as something which rounds off the arsenal of methods of criminal investigation in a sensible manner, and which complements conventional investigation methods that remain effective; instead, it must be seen against the backdrop of the shift of conventional forms of communication towards electronic information traffic including its subsequent digital processing and storage. For the effective prosecution of criminal offences and warding off of danger not only in the area of serious crime but also for the investigation of criminal offences that even in an individual case are of substantial importance or have been committed by means of telecommunications but are difficult to investigate without access to traffic data, the availability of the traffic data for a period of six months is, according to the legislature’s unobjectionable assessment, of great importance (see BVerfGE 115, 166 (192 et seq.); see also BVerfG, First Chamber of the Second Senate, order of 22 August 2006 – 2 BvR 1345/03 –, Neue Juristische Wochenschrift 2007, p. 351 (355)).

325

Accordingly, also the majority of the Senate acknowledges that the increased use of electronic or digital means of communication and their invading virtually all areas of life makes the prosecution of criminal offences and also the warding off of danger more difficult and that modern communications technologies are increasingly used in connection with a wide variety of crimes and that they contribute to also making criminal acts more effective. In the review of proportionality in the narrow sense it does not attach this development the weight that is necessary in my view.

326

b) What is more, as regards the practical result, the majority of the Senate virtually completely restricts the legislature’s latitude for assessment and drafting, which would permit it to pass appropriate and reasonable provisions in the field of the investigation of crimes and the warding off of danger for the protection of the population. In this way it also fails to take sufficient account of the requirement of judicial self-restraint with regard to conceptual decisions of the democratically legitimated legislature. It prescribes the legislature the details of a statutory regulation in the manner of an instruction to act which leaves virtually no room for a solution that, according to the legislature’s assessment, takes account of the existing circumstances in the area of telecommunications and the change that they have undergone.

327

The judgment finds that a storage duration of six months – that is, the minimum period called for by the EC Directive – is at the upper limit and at best capable of being constitutionally justified; it dictates to the legislature the technical rule that the provision on the purpose of use must at the same time contain the requirements for access, restricts the legislature to providing for lists of offences in criminal law, excludes the possibility of using the traffic data even to solve criminal offences that are difficult to investigate and were committed by use of the means of telecommunications, and extends the duties of notification in a specific manner. Following this, the legislature no longer has an appreciable discretion to legislate on its own political responsibility. It is essentially restricted to slightly adapting and modifying peripheral sectors of the list of criminal offences which justify data retrieval under the law of criminal procedure. It must implement the judgment unless it intends to refrain from passing a new provision, which would be contrary to Community law. Thus the judgment, as regards its practical result, substitutes legislation in that it even prescribes the details of a provision which the Senate regards as the only one that is constitutionally permissible.

328

3. The majority of the Senate demands that the legislature, when determining the purpose of use of the data, has to achieve clarity about the requirements for access and about procedural safeguard requirements. By doing so, it deprives the legislature of the possibility of operating, as regards the technical rules, with a system of complementary legal foundations, something which has not been objected to as yet in other areas. In what is known as its master account data decision, for example, the Senate has not found it constitutionally objectionable that the retrieval must be necessary to perform statutory duties which are provided elsewhere, that the cause of and the requirements for retrieval are, however, determined in a different Act (see BVerfGE 118, 168 (191)). However, in its decision on what is known as automatic number plate recognition, the Senate regarded the indications concerning the purpose of use as insufficient; the challenged Act did not make a statement on the purpose of use, thus including all conceivable purposes of use (see BVerfGE 120, 378 (409)). This, however, is different here (§ 113b TKG). It therefore benefits precisely the clarity of statutory provisions if the legal preconditions and provisos which result in the considerable intensification of the encroachment by the retrieval of the data are provided for in an area-specific manner in independent systems of provisions that relate to the respective legal area. As a matter of course, both provisions are subject to the constitutional requirements and constitutional review, if necessary, even as regards their interaction. Even if in relation to a Land legislature, the Federal legislature bears the responsibility of the storage of the traffic data, a possible provision under Land law which complements it must also comply with the constitution. Thus, no deficiency can occur as results legal protection.

329

Accordingly, there was no reason here to also deal, apart from the criminal-law provision on access under § 100g StPO, which was challenged in part by the constitutional complaints, with the details of the requirements of the use of the traffic data for warding off danger and for intelligence-service purposes.

330

4. Finally, the Senate refuses the legislature the right to retrieve the traffic data to investigate criminal offences that are not contained in the present list under § 100a.2 StPO but that are nevertheless of substantial importance in the individual case, and offences that are committed by means of telecommunications (§ 100g.1 sentence 1 nos. 1 and 2 StPO). In doing so, it also does not give due account to the weight of the possible offences and – to the extent that the legislature has considered them difficult to investigate – to the importance of the data for an effective investigation of criminal offences. With regard to no. 1 of § 100g.1 sentence 1 StPO, the legislature was guided by criteria which the Senate approved in its judgment of 12 March 2003 (BVerfGE 107, 299 (322)) on the release of telecommunications connection data. The Senate emphasised there that such encroachment is only justified with criminal offences to which the legislature generally attaches special weight and which are of substantial importance in the specific case, for example due to the damage caused and the degree of threat to the general public. I do not see that the threshold of encroachment which the Senate did not object to there would have to be weighted in a fundamentally different manner with regard to access to what is known as retained traffic data. In the combination of circumstances at issue there, the review of constitutionality in the individual case is incumbent on the judge ordering access; the judge has to include the weight of the access on the traffic data in the respective case in the weighing and has to limit it by the drafting of the order.

331

With regard to offences committed by means of telecommunications, for which the Senate would like to have ensured that access to the traffic data which are stored according to § 113a TKG is excluded as well, insufficient weight is attached to the fact that the legislature assumes substantial difficulties in investigation here. Apart from the particular weight of the offence to be investigated, also those difficulties may make the retrieval of retained traffic data seem appropriate, especially if, as is the case here, the legislature has provided the conditions for retrieval with a strict subsidiarity clause according to which the measure is permissible only if the investigation of the facts or the establishment of the whereabouts of the suspect in another way would be impossible or considerably more difficult and if the collection of the data is in a reasonable proportion to the importance of the matter even in the individual case (§ 100g.1 sentence 2 StPO).

332

Since it is the duty of the legislature to guarantee effective criminal prosecution and not to permit any substantial gaps in protection, the legislature may not be denied also giving access to the traffic data in the case of offences that may not be particularly serious if the legal interest injured is nevertheless of particular importance, because in its estimation this is the only way to prevent de facto legal vacuums and a situation where investigation is largely ineffective. Here, the legal offence of stalking, for example, may be cited as an example (§ 238.1 no. 2 StGB, “cyberstalking“); in this context, the traffic data are often the only investigative lead to verify statements in a situation in which it is one person’s word against another’s, but also to identify a perpetrator who is unknown at first. Here the possibility of using a telephone trap is helpful only to a limited extent because it does not cover the email traffic and ultimately depends on the service providers’ goodwill. Something similar applies to the offence of threatening the commission of a felony, above all, however, to the area of internet fraud, which, according to the crime statistics compiled by the police, involves a considerable number of cases. Finally, access to traffic data may be a consideration also with regard to other offences (§ 202a to 202c StGB, data espionage and phishing; see also §§ 269, 303a, 303b StGB, forgery of data intended to provide proof, data tampering, computer sabotage; § 38.1 of the Securities Trading Act (Wertpapierhandelsgesetz – WpHG) in conjunction with § 14.1 no. 1 WpHG, so-called insider trading, § 38.2 in conjunction with § 39.1 no. 1, § 20a.1 sentence 1 nos. 1 to 3 WpHG, illegal manipulations of the market; § 86 StGB, dissemination of propaganda material of unconstitutional organisations).

333

Admittedly, it seems conceivable that the legislature will incorporate some of these offences into the list of serious criminal offences demanded by the Senate. In doing so, however, it will come up against the limits of an appropriate threat of punishment committed to the principle of guilt which can justify this measure. It will thus hardly be permitted to incorporate, for example, offences which are not committed for commercial purposes or do not cause major damage in an individual case into a list such as the one which the Senate is contemplating. It will hardly be possible to mitigate the deficiencies in investigation by making use of non-retained data which only exist for technical reasons. Experience has shown that great differences exist between the service providers in this respect. In some cases, data are not retained at all, in other cases they are already deleted after a few hours or days. Even the investigation measures which will lead to the application for the issuing of a judicial order, the preparation of such an application and the decision on it will often take more time than the service provider keeps the data available for technical reasons.

334

5. Something similar applies with regard to the threshold of interference which the Senate establishes for purposes of warding off danger. The legal interests which the Senate considers sufficiently weighty for the traffic data to be regarded as retrievable and usable would have had to include the warding off of a danger, which is not at the same time a danger to public safety, to property of significant value, maintenance of which is demanded by the public interest. It does not seem plausible to me to exclude important material assets covered by this definition because they are also protected by fundamental rights (see Article 14.1 GG). To include this legal interest into protection as well is not inappropriate at least if the collection of traffic data furthermore contains a subsidiarity clause, as is the case for example in § 20m BKAG (“… would be impossible or considerably more difficult.”)

335

6. To the extent that the majority of the Senate postulates an extension of the duties of notification for the case of access to traffic data and demands in principle, with regard to the law of criminal procedure, not only what is known as open access but notification “before the retrieval or transmission” if this does not run counter to the protection of the purpose of the investigation, this requirement also goes beyond the legislative concept, thereby interfering with the legislature’s discretion. The concept of the legislature was to pass provisions on all “measures of undercover investigation”, among which it expressly included the collection of traffic data (Bill, Bundestag printed paper BTDrucks 16/5846, p. 2). Also § 100g StPO provides that traffic data may (at first) be collected “without the knowledge of the person concerned”. And this is with good reason. For as a general rule, investigations are characterised by a considerable dynamics and have to be conducted rapidly. Effort which purposes of procedural safeguarding and of the protection of the law do not absolutely demand to be made within a narrow time frame should at first be limited. Accordingly, the legislature has passed a differentiated provision on notification also for the collection of traffic data (see § 101.1, 101.4 sentence 1 no. 5, 104.5 StPO), which does not prescribe prior notification. In addition, the legislature, by permitting to collect traffic data at first without the knowledge of the person concerned, discernably introduced a categorisation which is due to the fact that in most cases, the purpose of the investigation, the unknown whereabouts of the person affected or the need to rapidly investigate the facts are contrary to prior notification. This is evidently not inappropriate, reasonable with regard to the person affected, and the legislature is therefore not constitutionally banned from proceeding in this manner.

III.

336

It is true that the declaration of nullity of the challenged provisions which was pronounced by the Senate is the legal consequence of the declaration of incompatibility which has been carried by the majority. However, on the basis of the constitutional assessment of the majority of the Senate, having recourse to established case-law of the Federal Constitutional Court, consideration might well have been given to fixing a time limit for the legislature to pass new legislation and to holding that the existing provisions could provisionally continue in effect in conformity with the stipulations of the temporary injunctions granted by the Senate. For the Senate grants the legislature the possibility of providing for an obligation to store traffic data for six months and also of passing provisions on access, under the preconditions specified in the judgment, which essentially comply with the requirements made in the temporary injunctions. The stipulations of the judgment mainly differ from those of the temporary injunctions merely by establishing higher requirements with regard to data security and by demanding further-reaching obligations of notification. With a view to the weighing, the Federal Constitutional Court’s frequent practice suggests to refrain at first from pronouncing a declaration of nullity and not to regard it as imperative to only permit, for the time being, the access to data of the service providers which still exist for technical or billing reasons. Thus considerable shortcomings in warding off danger and in the investigation even of serious criminal offences will have to be feared, and are tolerated, until the enactment of a new provision. Reference is made to the grounds of the temporary injunctions issued by the Senate and to the weighing made therein. In addition, the service providers must stay their measures implementing the challenged regulation and restore the previous situation, once the new, amended law will have been enacted, something which is required already under Community law, they will have to make considerable effort to create the requirements once again.

Schluckebier

Dissenting opinion of Justice Eichberger

to the judgment of the First Senate of 2 March 2010

– 1 BvR 256/08 –

– 1 BvR 263/08 –

– 1 BvR 586/08 –

337

I do not agree with the decision of the Senate majority with regard to part of the result of the judgment and with regard to essential elements of the reasoning. Basically, I agree with Justice Schluckebier’s critcism of them, and I agree with most of his opinion concerning the conclusion and the reasoning. In the following, I can therefore restrict myself to giving a brief account of the considerations that are essential for my point of view:

338

1. Also in my view, the statutory order to store the telecommunications traffic data is a weighty encroachment upon Article 10.1 GG in view of its broad and comprehensive character in terms of the staff and resources involved, in view of the fact that it takes place without a cause and in view of the considerable length of time of the prescribed data retention. As, however, the obligation to store data is restricted to the traffic data and does not cover the contents of the acts of telecommunication, and as it takes place in a decentralised manner by the service providers, the encroachment that goes along with the storage does not have the overriding importance that is generally attributed to it by the majority of the Senate. In view of the legislative concept of the data storage, which rules out a free access by state authorities on the traffic data stored in a decentralised manner by the private service providers, and which provides for strict barriers in terms of content and with regard to the law of procedure – in particular a substantial requirement of judicial authority – to data retrieval or, in my view, has to be amended by such statutory requirements, I regard the fear expressed by the majority of the Senate of an intimidating effect on the communication behaviour of the population as unfounded, at any rate as not empirically proven.

339

Therefore, in my opinion, the essential burdening effect on the interest protected by Article 10.1 GG for the citizens that results from the ordering of the data storage is first and foremost due to the potential danger, emanating from this large collection of data, of abuse by the service providers themselves or by unauthorised third parties or of excessive use by prosecution or police authorities. Precautions must be taken against this. I therefore unreservedly agree with the view taken by the majority of the Senate concerning the standards for sophisticated data security to be prescribed to the service providers by the legislature. I also essentially agree with most of the other safeguards under procedural law for data storage, data retrieval and the further use of the data (obligations to delete data and obligations of recording, requirements concerning transparency and legal protection) which the majority of the Senate considers necessary; according to my assessment, however, the requirements which the majority of the Senate places on the legislature in this context are too detailed in many respects and do not take sufficient account of the discretion which the constitution grants the legislature also in this context.

340

2. Unlike the majority of the Senate, and concurring with Justice Schluckebier, I am of the opinion that the legislative concept on which §§ 113a, 113b TKG are based, creating a sliding scale of legislative responsibility for the order of storage and the retrieval of data, is fundamentally in conformity with the constitution. In the context of this concept, § 113b TKG does not establish an independent encroachment upon Article 10.1 GG that goes beyond the order of data storage in § 113a TKG. Instead, the provision contains the constitutionally required determination of the purpose of the storage of the traffic data. Only the statutory authorisation granted elsewhere to retrieve data, which is provided in § 113b sentence 1 TKG, results in a new encroachment upon Article 10.1 GG that goes beyond the significance of the data storage performed until then. In this manner, the Federal legislature, with § 113b TKG, leaves the legislature of the Federation or of the Länder that is competent for the respective area the authorisation, which is due to it by virtue of its constitutional and democratic legitimisation, to decide whether and to what extent it will access telecommunications traffic data for purposes of the prosecution of criminal offences, to ward off danger or for the duties of the intelligence services. In doing so, the respective legislature, as a matter of course, must respect on its own responsibility the constitutional boundaries of a proportionate access to the traffic data.

341

This does not constitute an order of collecting data to keep them in reserve for undetermined purposes, which would be constitutionally impermissible. While obliging the service providers in § 113a TKG to store data, the Federal legislature specified in § 113b TKG the purposes for which the stored data may be used. The responsibility, which the Federal legislature assumed by ordering the data storage, for the potential danger thus created to the detriment of the citizens in my view requires however, and in this I agree with the starting point of the opinion of the Senate majority, not only a fundamental outline of the purpose of use but also the determination of at least a minimum threshold of interference; such a threshold has been provided with regard to the prosecution of criminal offences in § 113b sentence 1 no. 1 TKG in conjunction with § 100g.1 StPO, which has been adopted at the same time, and has been described using the term “substantial dangers” in § 113b sentence 1 no. 2 TKG with regard to the warding off of dangers but has not been provided in a similar manner with regard to the performance of the duties of the intelligence services. An amendment to this effect would be required here. However, I do not regard a detailed and final determination of the purposes of use which the majority of the Senate demands from the Federal legislature to be made at the same time as the order of the data storage as constitutionally required.

342

3. Finally, and above all, I cannot agree with the result of weighing reached by the majority of the Senate to the extent that it regards the use of the data stored under § 113a TKG, which is governed by § 100g StPO, for purposes of criminal prosecution as unconstitutional. The reason for this is, firstly, that the majority of the Senate, already in the starting point of its considerations, attaches, in my opinion, too much weight to the encroachment upon Article 10.1 GG caused by the ordering of the data storage and, in contrast, too little importance to the justified interest of the general public and of the individual citizens in an effective prosecution of criminal offences and in an effective warding off of dangers. Moreover, it places too little value on the margin of discretion which is due to the legislature when evaluating the conflicting legal interests that merit protection and the drafting of the provision. On this point, I make reference to the statements made by Justice Schluckebier in his dissenting opinion, to which I agree.

343

Apart from this, the review of proportionality performed by the majority of the Senate suffers from its always assuming the greatest possible encroachment of a comprehensive form of data retrieval which ultimately aims to create a social profile of the citizen affected or to track his or her movements. This can indeed constitute an encroachment whose seriousness is similar to that of a weighty access to the contents of a citizen’s acts of telecommunication. This perspective, however, leaves out of account that many instances of data retrieval may concern individual events, short periods of time and the telecommunications contacts of only one, or few, persons (for example the telecommunications connections of one person in one day or even in a specific hour). The weight of the encroachment that such data retrieval constitutes is minor; it is not comparable, at any rate, to access to contents of communication, regardless of the fact that the retrieval draws on the comprehensively compiled data collection. By regarding every data retrieval as a particularly serious encroachment upon Article 10.1 GG, irrespective of its concrete extent in the individual case, and thus generally considering the legislature constitutionally obliged to establish very high thresholds of encroachment, the majority of the Senate, in my view, also gets into a conflict of evaluation, even though it denies this, because it is possible for the authorities to retrieve similar data, without the Senate objecting, if they are not stored by the services provider according to § 113a TKG but for technical reasons.

344

On this basis, I can, in spite of the different weighting, still concur with the starting point of the conditions, for which the majority of the Senate has established standards, of a permissible use of the traffic data for warding off danger and for intelligence-service purposes (C V 2 b and c) but not with the requirements which the majority of the Senate places on the use of the data for the prosecution of criminal offences (C V 2 a and C VI 3 a aa). In this respect, I regard the differentiated concept for the collection and use of data for criminal prosecution created by the legislature in § 100g StPO as constitutional. It is the duty of the judge competent to decide on the permissibility of a retrieval of data in every individual case to take due account of the legal interests worthy of protection under Article 10.1 GG considering the weight of the respective encroachment, as is explicitly demanded from the legislature particularly as regards the criminal offences committed by means of telecommunications in § 100g.1 sentence 2 StPO.

345

4. In my opinion, even from the point of view of the majority of the Senate, merely the unconstitutionality of the challenged provisions would have had to be established and according to the temporary injunctions issued in this matter, at least the data collection and storage in the interim until the passing of a new, constitutional provision would have had to be ordered. By declaring the provisions void without transition and by establishing an obligation to delete the traffic data obtained on the basis of the temporary injunctions, the majority of the Senate tolerates disadvantages for the prosecution of criminal offences but above all the risk of dangers, which cannot be excluded, to important legal interests that must be protected even though it regards instances of data retrieval which meet the requirements formulated in the temporary injunctions as fundamentally constitutional and a corresponding legal regulation is to be expected. I cannot concur with such a solution.

Eichberger

The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

There is no sufficiently definite statutory basis in the current law of the Land (state) Baden-Württemberg for a prohibition on teachers wearing a headscarf at school and in lessons.

Social change, which is associated with increasing religious plurality, may be the occasion for the legislature to redefine the admissible degree of religious references permitted at school.

Judgment of the Second Senate of 24 September 2003
on the basis of the oral hearing of 3 June 2003
– 2 BvR 1436/02 –

…

RULING:

The judgment of the Federal Administrative Court (Bundesverwaltungsgericht) of 4 July 2002 – BVerwG 2 C 21.01 -, the judgment of the Baden-Württemberg Higher Administrative Court (Verwaltungsgerichtshof Baden-Württemberg) of 26 June 2001 – 4 S 1439/00 -, the judgment of the Stuttgart Administrative Court (Verwaltungsgericht Stuttgart) of 24 March 2000 – 15 K 532/99 – and the ruling of the Stuttgart Higher School Authority (Oberschulamt Stuttgart) of 10 July 1998 in the form of the ruling on an objection of 3 February 1999 – 1 P L., F./13 – infringe the complainant’s rights under Article 33.2 in conjunction with Article 4.1 and 4.2 and with Article 33.3 of the Basic Law. The judgment of the Federal Administrative Court is overturned. The matter is referred back to the Federal Administrative Court.

The Federal Republic of Germany and the Land Baden-Württemberg are ordered each to pay half the complainant’s necessary costs for the constitutional complaint proceedings.

GROUNDS:

1

The complainant petitions to be appointed to the teaching profession of the Land Baden-Württemberg. In her constitutional complaint she challenges the decision of the Stuttgart Higher School Authority, which has been confirmed by the administrative courts, refusing to appoint her as a civil servant on probation as a teacher at German primary schools (Grundschule) and non-selective secondary schools (Hauptschule) on the grounds that her declared intention to wear a headscarf at school and in lessons means that she is unsuited for the office.

I.

2

1. The complainant was born in Kabul, Afghanistan in 1972; since 1987 she has lived without interruption in the Federal Republic of Germany, and in 1995 she acquired German nationality. She is of the Muslim religion. After passing the First State Examination and doing teaching practice, in 1998 the complainant passed the Second State Examination for the teaching profession at the primary school and the non-selective secondary school, with the main emphasis on the secondary school and the subjects German, English and social studies/economics.

3

2. The Stuttgart Higher School Authority refused the complainant’s application to be appointed to the teaching profession at the English primary school and the non-selective secondary school in the Land Baden-Württemberg on the grounds of lack of personal aptitude. By way of a reason, it was stated that the complainant was not prepared to give up wearing a headscarf during lessons. The headscarf, it was stated, was an expression of cultural separation and thus not only a religious symbol, but also a political symbol. The objective effect of cultural disintegration associated with the headscarf, it was said, was not compatible with the requirement of state neutrality.

4

3. In her objection, the complainant submitted that the wearing of the headscarf was not only a mark of her personality, but also the expression of her religious conviction. Under the precepts of Islam, wearing a headscarf was part of her Islamic identity. The decision refusing her petition, she submitted, violated the fundamental right of freedom of religion under Article 4.1 and 4.2 of the Basic Law (Grundgesetz – GG) . Although the state had an obligation to preserve neutrality in questions of religion, when it fulfilled its duty to provide education under Article 7.1 of the Basic Law it was not obliged to refrain completely from religious and ideological references, but had to enable a careful balance between the conflicting interests. Unlike the crucifix, the headscarf was not a symbol of religion. In addition, the present case concerned her individual and religiously motivated acting as a subject of fundamental rights.

5

4. The Stuttgart Higher School Authority dismissed the complainant’s objection. It submitted that although Article 33.3 of the Basic Law prohibited the rejection of an applicant on the grounds of the applicant’s religion alone, it did not exclude the possibility of relying on a lack of aptitude for the civil service associated with the belief. Wearing the headscarf for reasons of faith was protected by Article 4.1 of the Basic Law. However, the complainant’s freedom of religion was limited by the fundamental right of the pupils to negative religious freedom, the parents’ right of education under Article 6.2 of the Basic Law and the obligation of the state to preserve neutrality in ideology and religion. Even if the complainant did not proselytise for her religious conviction, by wearing the headscarf in lessons she expressed her affiliation to Islam at every time and without the pupils being able to escape this; in this way, she forced the pupils to confront this expression of faith. As young people with personalities that were not yet established, they were particularly open to influences of every kind. The crucial factor in this respect was solely the objective effect of the headscarf. Specifically for schoolgirls of the Muslim faith, a considerable pressure to conform might arise here; this would contradict the school’s pedagogical duty to work towards the integration of the Muslim pupils.

6

5. The Stuttgart Administrative Court dismissed the complainant’s action and stated as grounds for its decision that the religiously motivated wearing of a headscarf by a teacher constituted a lack of aptitude in the meaning of § 11.1 of the Baden-Württemberg Land Civil Service Act (Landesbeamtengesetz Baden-Württemberg – LBG). The complainant’s freedom of religion conflicted with the state’s duty of neutrality and the rights of the pupils and their parents.

7

The headscarf worn by the complainant demonstrated strikingly and impressively her profession of Islam; in this connection it was irrelevant that the headscarf, unlike the crucifix for the Christian faith, was not regarded as the symbolic embodiment of the Islamic faith. By reason of general compulsory school attendance and the lack of influence of the pupils on the selection of their teachers, the pupils had no possibility of avoidance. This gave rise to the danger of influence – including unintended influence – by the teacher, who was felt to be a person in authority.

8

6. The appeal against this was dismissed by the Baden-Württemberg Higher Administrative Court. The court held that in the discretionary decision as to whether to appoint an applicant, an assessment was made on the aptitude of the applicant; here, a prediction had to be made, and this was only to a limited extent subject to judicial review. One of the elements of aptitude was the expectation that the applicant would fulfil his or her duties as a civil servant. The assessment that because the complainant intended for religious reasons to wear a headscarf in lessons she lacked aptitude for the post she sought, that of a teacher at the primary school and non-selective secondary school in the state school service, was unobjectionable. The personal aptitude of teachers was in part to be determined on the basis of how far they were in the position to put into practice the educational objectives laid down under Article 7.1 of the Basic Law and to fulfil the state’s duty to provide education. If the employer refused to make an appointment because an applicant for religious reasons did not intend to observe the constitutionally created restrictions in teaching, the employer did not infringe the prohibition of unfavourable treatment in Article 33.3 of the Basic Law for lack of a causal link to the applicant’s religion.

9

At school, the differing religious and ideological convictions of the pupils and their teachers confronted each other in a particularly intensive way. The conflict arising from this called for a balancing of the interests in practical concordance. Here, the state did not have to completely dispense with religious and ideological references at school. In addition, when the employer assessed aptitude, the employer had to take the applicant’s fundamental rights into account. For this reason, the exercise of freedom of religion and belief could not in itself be a reason for rejection. But wearing a headscarf in class, as the complainant intended, would infringe the requirement of neutrality that the state had to observe at schools and the fundamental rights of the students and their parents and thus the official duty of the complainant as a representative of the state to carry out her duties impartially and in the service of the public interest.

10

The duty of neutrality in ideology and religion imposed on the state by the Basic Law was not a distancing and rejecting neutrality of the nature of laicist non-identification with religions and ideologies, but a respectful neutrality, taking precautions for the future, which imposed on the state a duty to safeguard a sphere of activity both for the individual and for religious and ideological communities. Within the meaning of this precautionary neutrality, however, the state was not permitted to endanger religious peace at school of its own motion. In class, the students were exposed to religious symbols without the opportunity to avoid them; here, the requirement of state neutrality gave paramount protection to the negative religious freedom of students of different faiths and the parents’ right to educate their children with regard to religion and ideology.

11

If a teacher wore a headscarf in lessons, this could lead to religious influence on the students and to conflicts within the class in question, even if the complainant had credibly denied any intention of recruitment or proselytising. The only decisive factor was the effect created in students by the sight of the headscarf. The headscarf motivated by Islam was a plainly visible religious symbol that the onlooker could not escape. Primary school pupils in particular were scarcely in a position to intellectually assimilate the religious motivation for wearing a headscarf and to decide consciously in favour of tolerance or criticism. The danger of religious influence inherent in this could not be reconciled with the required protection of the negative religious freedom of students and parents and conflicted with the requirement of state neutrality. In addition, the pre-emptive prevention of conflicts caused by religion at school, such as were sufficiently foreseeable in the present case on the basis of experience of life, was a legitimate goal of the state’s organisation of schools. An acceptable pragmatic solution of the conflict that allowed the complainant’s freedom of belief to be taken more extensively into account was not possible in view of the principle of the class teacher, which was predominant at the primary school and the non-selective secondary school, and because of organisational difficulties with regard to moving from one school or class to another.

12

7. The Federal Administrative Court dismissed the complainant’s appeal. It held that the decision to make the complainant’s employment as a civil servant in the teaching profession dependent on her readiness to remove her headscarf in lessons had been correct.

13

The court held that since the complainant derived the requirement to wear a headscarf from her religion, she was protected by the fundamental right in Article 4.1 of the Basic Law and the right equivalent to a fundamental right in Article 33.3 sentence 1 of the Basic Law. Notwithstanding the fact that there was no constitutional requirement of a specifically enacted statute, freedom of faith was not guaranteed without restriction. Restrictions followed from the Basic Law itself, in particular from the conflicting fundamental rights of persons of a different opinion. Nor did Article 4.1 of the Basic Law give the individual any unrestricted right to exercise his or her religious convictions within the framework of state institutions or to express it with state support. The comprehensively guaranteed freedom of faith gave rise to the precept of state neutrality towards the various religions and denominations. In the context of secular compulsory schools, organised and structured by the state, Article 4.1 of the Basic Law as a guarantee of freedom benefited above all children required to attend school and their parents. Here, the state was also obliged to take account of the freedom of religion of the parents and the right of education guaranteed to them under Article 6.2 sentence 1 of the Basic Law. Children must be taught and educated in state compulsory schools without any partiality on the part of the state and of the teachers representing it in favour of Christian beliefs or of other religious and ideological convictions. With growing cultural and religious variety, where a growing proportion of schoolchildren were uncommitted to any religious denomination, the requirement of neutrality was becoming more and more important, and it should not, for example, be relaxed on the basis that the cultural, ethnic and religious variety in Germany now characterised life at school too.

14

By reason of the significance that Muslims attached to the “Islamic headscarf”, others too saw the headscarf as the symbolic expression of a particular religious conviction and it was generally seen as a profession of Islamic faith. If the teacher wore a headscarf in lessons, this meant that during class hours the pupils were constantly and unavoidably confronted, at the instigation of the state, with this clear symbol of a religious conviction. The duration and intensity of this confrontation meant that it was not a trifling matter as far as the pupils’ freedom of faith was concerned. The teacher confronted the pupils as a person in authority appointed by the state and representing the state. Admittedly, it was difficult to determine whether her visible sign of religious faith had any influence on the pupils; however, at all events influence of the items of faith symbolised by the headscarf on pupils of primary school and non-selective secondary school age from four to fourteen could not be excluded.

15

The teacher’s right to conduct herself in accordance with her religious conviction must have lower priority than the conflicting freedom of faith of the pupils and parents during lessons. Neither the requirement of tolerance nor the principle of practical concordance (praktische Konkordanz ) created a compulsion to override the parents’ rights and the freedom of faith of the parents and the pupils of a state school in favour of a teacher wearing a headscarf. Under Article 33.5 of the Basic Law, teachers were obliged to accept restrictions of their positive freedom of religion; these were necessary in order to guarantee that school lessons took place in an environment of religious neutrality.

II.

16

In her constitutional complaint, the complainant challenges the decisions made in the administrative procedure and in the proceedings before the administrative courts. She challenges a violation of Articles 1.1, 2.1, 3.1, 3.3 sentence 1, 4.1 and 4.2 and 33.2 and 33.3 of the Basic Law.

17

The complainant argued that a Muslim applicant wearing a headscarf also had a constitutional right to be appointed under Article 33.2 of the Basic Law. Admission to public office had to occur independently of a profession of religious belief (Article 33.3 sentence 1 of the Basic Law) without permitting the applicant to be disadvantaged for this reason (Article 33.3 sentence 2 of the Basic Law). Wearing a headscarf therefore did not constitute a lack of aptitude.

18

The ordinary courts based their decisions on a changed attitude to the state requirement of neutrality in the Federal Republic of Germany. This strict understanding of neutrality resulted in restricting the possibility of a civil servant professing his religious beliefs at work. Unlike a laicist state, the Federal Republic of Germany, by its constitution, was open to religious activity even in schools, and in this way it pursued what is known as a comprehensive, open and respectful neutrality. School was not a refuge in which one could close one’s eyes to social plurality and reality. On the contrary, the school’s duty to provide education meant preparing adolescents for what they would encounter in society.

19

The decisive statements in the Federal Constitutional Court’s crucifix decision were not applicable to the present case. Whereas that case concerned a religious symbol that the school, as a state institution, was responsible for installing, in this case the complainant, as a subject of fundamental rights, had suffered an encroachment upon her right to freedom of faith. In the case of fundamental rights that were unconditionally guaranteed, a restriction of the exercise of the right could be considered only in cases of specific endangerment. There was no such endangerment; there was no evidence of the alleged suggestive effect of the headscarf and the alleged possibility of a detrimental psychological effect. When the complainant had done teaching practice, there had been no conflicts or serious difficulties. The endangerments set out by the appointing body were merely of an abstract and theoretical nature. If concrete conflicts arose, there were acceptable means of solving them.

III.

20

The Federal Government and the Land Baden-Württemberg submitted opinions on the constitutional complaint.

21

1. In the name of the Federal Government, the Federal Ministry of the Interior stated that neither Article 33.2 of the Basic Law nor the provisions of Land law passed to put the Article into concrete terms gave a right to be appointed to a public office. Instead, the employing authority made this decision according to its best judgment. The aptitude of an applicant depended on the requirements of the specific post to be filled; this aptitude was to be decided on the basis of a prediction, which required the whole personality of the applicant to be assessed. Aptitude for the teaching profession included the ability and the readiness of the teacher to comply with the official duties arising from the status of a civil servant under the concrete conditions of working at school. The traditional fundamental principles of the permanent civil service laid down in Article 33.5 of the Basic Law, which restricted the fundamental rights of civil servants, included the obligation of teachers who were civil servants to carry out their duties objectively and neutrally. This official duty also comprised the duty to carry out one’s duties neutrally from the point of view of religion and ideology, respecting the viewpoints of pupils and parents.

22

Independently of the complainant’s subjective appraisal that it was far from her intentions to demonstrate her religion, great importance attached to the employer’s prediction of future danger in that the teacher’s conspicuous outer appearance might have a long-term detrimental influence on the peace at the school, in particular because throughout all the lessons the pupils were confronted with the sight of the headscarf and thus the expression of a foreign religious belief, without a possibility of avoiding it. An employer who in these circumstances proceeded on the assumption that the teacher lacked aptitude because he or she could not be used in all circumstances was within the scope of evaluation permitted an employer. Nor did the employer violate the prohibition of discrimination in Article 33.3 of the Basic Law, since the rejection was not based on the teacher’s religion, but on her lack of distance and neutrality. Teachers at the primary school and non-selective secondary school were required to refrain from wearing an Islamic headscarf in class and thus also to refrain from exercising their freedom of belief in this respect.

23

Just as in the case of the crucifix in the classroom, the decisive factor with regard to the Muslim headscarf was the fact that because of compulsory school attendance for all children – unlike in the case of a brief encounter in everyday life – continuous confrontation with a religious symbol could not be avoided. The fact that the complainant is a subject of fundamental rights did not alter the fact that the symbol she used was to be attributed to the state. However, it should be taken into account when weighing interests that the wearing of the religious symbol was itself the exercise of a fundamental right. In the attempt to achieve practical concordance, consideration should be given not only to the conflicting fundamental rights positions, but also to the state’s requirement of neutrality, which was not at the court’s disposal. This could be taken into account in the present case only by not using the religious symbol. This did not involve an intensification of the requirement “in the direction of a laicist understanding” of it. Rather, consideration was merely being given to the growing importance of state neutrality in view of an increasing number of religions in society.

24

2. The Land Baden-Württemberg (Stuttgart Higher School Authority) submitted that the constitutional review had to be restricted to considering whether the judgment of the nonconstitutional court had been free of arbitrariness and if it contained errors of interpretation that were based on a fundamentally erroneous view of the significance of a fundamental right, in particular of the extent of its scope of protection. The Federal Administrative Court had illuminated the constitutional aspects of the case in full, assessed and weighed them thoroughly and come to a correct result, free of arbitrariness.

25

Both Article 33.2 of the Basic Law and the fundamental rights in Articles 4 and 6 of the Basic Law had been correctly interpreted and applied. Article 4.1 and 4.2 of the Basic Law as the guarantee of negative freedom of religion secured freedom from expressions of religious opinions from which the pupils could not escape at school. Here, account had to be taken of the fact that schoolchildren’s personalities were not yet fully developed, and as a result schoolchildren were particularly open to mental influences by persons in authority, and in their developmental phase they learnt in the first instance by imitating the behaviour of adults. In addition, in particular in the case of children who have not reached the age at which they can decide on religious matters themselves, the parents’ right of education applies.

26

Under Article 7.1 of the Basic Law, the state had an independent duty to provide education which is of equal weight to that in Article 6.2 of the Basic Law. Practical concordance between the state’s duty to provide education and the rights of parents and children under Article 4.1 and 4.2 of the Basic Law is achieved by the state’s conducting itself neutrally in religious and ideological matters. The requirement of neutrality attained all the more importance the more diverse the religions in society. The state’s neutrality must be shown in the person of the teacher. Even a comprehensive, open and respectful neutrality did not permit exercise of individual religions as the emanation of state power. The Federal Administrative Court had not introduced an altered concept of neutrality, but merely accorded a growing importance to the requirement of neutrality in a society that was pluralist from the point of view of religion. Since during lessons the headscarf was permanently before the children’s eyes, the possibility that it influenced them could not be excluded, and this alone infringed the requirements of neutrality towards children who had not reached the age at which they could decide on religious matters themselves.

27

On the question of the influence of religious forms of expression in the state education system on the pupils, the Stuttgart Higher School Authority submitted a statement by Professor Dr. Dr. h.c. Oser, Fribourg/Switzerland, as an expert witness.

IV.

28

In the oral hearing, the complainant and her attorney, and the Land Baden-Württemberg (Stuttgart Higher School Authority), represented by Professor Dr. F. Kirchhof, amended and extended their written submissions. The following expert witnesses were heard: Dr. Karakasoglu, Essen, on the reasons why young Muslim girls and women in Germany wear a headscarf; Professor Dr. Riedesser, Hamburg, Professor Dr. Bliesener, Kiel, and Ms Leinenbach, Director of the Psychological Department (Stuttgart Higher School Authority) on questions of a possible influence on children of primary school and non-selective secondary school age from the point of view of child and developmental psychology.

B.

29

The constitutional complaint is admissible and is well-founded. The decisions challenged violate Article 33.2 of the Basic Law in conjunction with Article 4.1 and 4.2 of the Basic Law and with Article 33.3 of the Basic Law.

30

In the context to be assessed here, wearing a headscarf makes it clear that the complainant belongs to the Islamic religion and identifies herself as a muslima. Defining such conduct as a lack of aptitude for the office of a teacher at the primary school and non-selective secondary school encroaches upon the complainant’s right to equal access to every public office under Article 33.2 of the Basic Law in conjunction with the fundamental right of freedom of faith guaranteed to her by Article 4.1 and 4.2 of the Basic Law, without the necessary, sufficiently definite statutory basis for this being satisfied at present. In this way, the complainant has in a constitutionally unacceptable manner been denied access to a public office.

I.

31

Constitutional review in connection with a constitutional complaint concerning a judgment is normally restricted to examining whether the decisions challenged, in their interpretation and application of law below the constitutional level, are based on a fundamentally erroneous view of the meaning and scope of the fundamental right relied on or are arbitrary (on this, cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts , BVerfGE 18, 85 (93); established case-law). However, to the extent that the court whose decision is challenged by the constitutional complaint directly interpreted and applied provisions of fundamental rights itself, the Federal Constitutional Court has a duty to determine the scope and limits of the fundamental rights and to establish whether fundamental rights were taken into account without any error of constitutional law with regard to their extent and weight. This is the situation in the present case. The Federal Administrative Court and also the lower courts based their decisions on a particular interpretation of Article 33.2 of the Basic Law in conjunction with Article 4.1 and 4.2 of the Basic Law. In accordance with its duty of preserving, developing and extending constitutional law and in particular interpreting the various functions of a legal provision containing a fundamental right (cf. BVerfGE 6, 55 (72); 7, 377 (410)), the Federal Constitutional Court in this regard, in its relation to the nonconstitutional courts, is not restricted to examining whether the nonconstitutional courts applied constitutional law in a non-arbitrary manner, but must itself take final and unappealable decisions on the interpretation and application of constitutional law.

II.

32

1. Article 33.2 of the Basic Law grants every German, in accordance with his or her aptitude, qualifications and professional achievement, equal access to every public office.

33

The right in Article 33.2 of the Basic Law, which is equivalent to a fundamental right, guarantees the degree of free choice of one’s occupation or profession (Article 12.1 of the Basic Law) that is possible in view of the number of positions in the civil service, which is, and is permitted to be, restricted by the public corporation responsible in each case (cf. BVerfGE 7, 377 (397-398); 39, 334 (369). Article 33.2 of the Basic Law grants no right to be appointed to a public office (cf. BVerfGE 39, 334 (354); Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts , BVerwGE 68, 109 (110)). The access to activity in a public office (admission to an occupation, which also relates to free choice of occupation) may in particular not be restricted by subjective requirements for admission (cf. BVerfGE 39, 334 (370)). This is done in accordance with § 7 of the Civil Service Law Framework Act (Beamtenrechtsrahmengesetz – BRRG) of 31 March 1999 (Federal Law Gazette, Bundesgesetzblatt, BGBl, I p. 654) in the Civil Service Acts of the Länder by provisions on the personal requirements necessary for those appointed to the status of civil servants. § 11.1 of the Baden-Württemberg Land Civil Service Act as amended on 19 March 1996 (Baden-Württemberg Law Gazette, Gesetzblatt, GBl, p. 286) which applies in the present case, provides that appointments are to be made on the basis of aptitude, qualifications and professional achievement, without taking into account gender, descent, race, belief, religious or political convictions, origin or connections.

34

b) When laying down aptitude criteria for the relevant office and when defining official duties by reference to which the aptitude of applicants for the civil service is to be assessed, the legislature in general has a broad legislative discretion. Limits to this legislative discretion follow from the value decisions in other constitutional norms; the fundamental rights in particular impose limits on the legislature’s legislative discretion. Even for those with the status of civil servants, the fundamental rights apply, although the civil servant’s sphere of responsibilities under Article 33.5 of the Basic Law restricts the civil servant’s legal possibility of relying on fundamental rights (cf. BVerfGE 39, 334 (366-367)): Limits may be imposed on the civil servant’s exercise of fundamental rights in office; these limits follow from general standards imposed on the civil service or from particular requirements of the public office in question (cf. e.g. BVerwGE 56, 227 (228-229)). However, if even access to a public office is refused by reason of future conduct on the part of the applicant that is protected as a fundamental right, then the assumption that there is a lack of aptitude for this reason must in turn be justifiable with regard to the fundamental right affected.

35

c) The evaluation by the employer of an applicant’s aptitude for the public office applied for relates to the applicant’s future occupation in office and at the same time contains a prediction, which requires a concrete assessment of the applicant’s whole personality based on the individual case (cf. BVerfGE 39, 334 (353); 92, 140 (155)). This also includes a statement with regard to the future as to whether the person in question will fulfil the duties under civil-service law that he or she is subject to in the office applied for. In this assessment with regard to the future, the employer has a wide scope of discretion; the review by the nonconstitutional courts is essentially restricted to determining whether the employer proceeded on the basis of incorrect facts, misjudged the civil-service law and constitutional-law context, disregarded generally valid standards of value or took irrelevant matters into consideration (cf. BVerfGE 39, 334 (354); BVerwGE 61, 176 (186); 68, 109 (110); 86, 244 (246)). The employer’s prediction as to an applicant’s aptitude for a particular office must be based on the civil servant’s duties (§§ 35 et seq. of the Civil Service Law Framework Act; §§ 70 et seq . of the Baden-Württemberg Land Civil Service Act). Official duties that the applicant is expected to carry out must be sufficiently specified in law and must respect the limits imposed by the applicant’s fundamental rights.

36

2. If a duty is imposed on the civil servant that, at school and in lessons, teachers may not outwardly show their affiliation to a religious group by observing dress rules with a religious basis, this duty encroaches upon the individual freedom of faith guaranteed by Article 4.1 and 4.2 of the Basic Law. It confronts those affected with the choice either to exercise the public office they are applying for or obeying the religious requirements as to dress, which they regard as binding.

37

Article 4.1 of the Basic Law guarantees freedom of faith, conscience and religious and ideological belief; Article 4.2 guarantees the right of undisturbed practice of religion. The two subsections of Article 4 of the Basic Law contain a uniform fundamental right which is to be understood comprehensively (cf. BVerfGE 24, 236 (245-246); 32, 98 (106); 44, 37 (49); 83, 341 (354)). It extends not only to the inner freedom to believe or not to believe, but also to the outer freedom to express and disseminate the belief (cf. BVerfGE 24, 236 (245)). This includes the individual’s right to orientate his or her whole conduct to the teachings of his or her faith and to act in accordance with his or her inner religious convictions. This relates not only to imperative religious doctrines, but also to religious convictions according to which a way of behaviour is the correct one to deal with a situation in life (cf. BVerfGE 32, 98 (106-107); 33, 23 (28); 41, 29 (p 49)).

38

The freedom of faith guaranteed in Article 4.1 and 4.2 of the Basic Law is guaranteed unconditionally. Restrictions must therefore be contained in the constitution itself. This includes the fundamental rights of third parties and community values of constitutional status (cf. BVerfGE 28, 243 (260-261); 41, 29 (50-51); 41, 88 (107); 44, 37 (49-50, 53); 52, 223 (247); 93, 1 (21)). Moreover, restricting the freedom of faith, which is unconditionally guaranteed, requires a sufficiently definite statutory basis (cf. BVerfGE 83, 130 (142)).

39

3. Article 33.3 of the Basic Law is also affected. It provides that admission to public offices is independent of religious belief (sentence 1); no-one may suffer a disadvantage by reason of belonging or not belonging to a faith or to an ideology (sentence 2). Consequently, a connection between admission to public offices and religious belief is out of the question. Article 33.3 of the Basic Law is directed in the first instance against unequal treatment directly linked to the profession of a particular religion. In addition, the provision at all events also prohibits refusing admission to public offices for reasons that are incompatible with the freedom of faith protected by Article 4.1 and 4.2 of the Basic Law (cf. BVerfGE 79, 69 (75)). This does not exclude creating official duties that encroach upon the freedom of faith of office-holders and applicants for official offices, and that thus make it harder or impossible for religious applicants to enter the civil service, but it does subject these to the strict requirements of justification that apply to restrictions of freedom of faith, which is guaranteed unconditionally; in addition, the requirements of strictly equal treatment of the various religions must be observed, both in creating and in the practice of enforcing such official duties.

40

4. a) The wearing of a headscarf by the complainant at school as well as outside school is protected by the freedom of faith, which is guaranteed in Article 4.1 and 4.2 of the Basic Law. According to the findings of fact made by the nonconstitutional courts and not disputed in the proceedings relating to the constitutional complaint, the complainant regards the wearing of a headscarf as bindingly imposed on her by the rules of her religion; observing this dress rule is, for her, the expression of her religious belief. The answer to the controversial question as to whether and how far covering the head is prescribed for women by rules of the Islamic faith is not relevant. It is true that not every form of conduct of a person can be regarded as an expression of freedom of faith, which enjoys special protection, purely according to its subjective intention; instead, when conduct by an individual that has been claimed to be an expression of the individual’s freedom of faith is assessed, that his or her particular religious group’s concept of itself may not be overlooked (cf. BVerfGE 24, 236 (247-248)). A duty of women to wear a headscarf in public may, by its content and appearance, as a rule of faith founded in the Islamic religion, be attributed with sufficient plausibility to the area protected by Article 4.1 and 4.2 of the Basic Law (on this, see also BVerfGE 83, 341 (353)); this was done by the nonconstitutional courts in a manner that cannot be constitutionally objected to.

41

b) The assumption that the complainant lacks the necessary aptitude to fulfil the duties of a teacher at the primary school und non-selective secondary school, because, contrary to an existing official duty, she wanted to wear a headscarf at school and in lessons, and this headscarf showed clearly that she was a member of the Islamic religious group, and the refusal to admit her to a public office, which was based on this, would be compatible with Article 4.1 and 4.2 of the Basic Law if the intended exercise of freedom of faith conflicted with objects of legal protection of constitutional status and this restriction of the free exercise of religion could be based on a sufficiently definite statutory foundation. Interests that are protected by the constitution that conflict with freedom of faith here may be the state’s duty to provide education (Article 7.1 of the Basic Law), which is to be carried out having regard to the duty of ideological and religious neutrality, the parents’ right of education (Article 6.2 of the Basic Law) and the negative freedom of faith of schoolchildren (Article 4.1 of the Basic Law).

42

aa) In Article 4.1, Article 3.3 sentence 1 and Article 33.3 of the Basic Law, and in Article 136.1, Article 136.4 and Article 137.1 of the Weimar Constitution (Weimarer Reichsverfassung ) in conjunction with Article 140 of the Basic Law, the Basic Law lays down for the state as the home of all citizens the duty of religious and ideological neutrality. It bars the introduction of legal structures in the nature of a state church and forbids giving privileged treatment to particular faiths and excluding those of a different belief (cf. BVerfGE 19, 206 (216); 24, 236 (246); 33, 23 (28); 93, 1 (17)). The state must be careful to treat the various religious and ideological communities with regard to the principle of equality (cf. BVerfGE 19, 1 (8); 19, 206 (216); 24, 236 (246); 93, 1 (17)) and may not identify with a particular religious community (cf. BVerfGE 30, 415 (422); 93, 1 (17)). The free state of the Basic Law is characterised by openness towards the variety of ideological and religious convictions and bases this on an image of humanity that is marked by the dignity of humans and the free development of personality in self-determination and personal responsibility (cf. BVerfGE 41, 29 (50)).

43

However, the religious and ideological neutrality required of the state is not to be understood as a distancing attitude in the sense of a strict separation of state and church, but as an open and comprehensive one, encouraging freedom of faith equally for all beliefs. Article 4.1 and 4.2 of the Basic Law also contain a positive requirement to safeguard the space for active exercise of religious conviction and the realisation of autonomous personality in the area of ideology and religion (cf. BVerfGE 41, 29 (49); 93, 1 (16)). The state is prohibited only from exercising deliberate influence in the service of a particular political or ideological tendency or expressly or impliedly identifying itself by way of measures originated by it or attributable to it with a particular belief or a particular ideology and in this way itself endangering religious peace in a society (cf. BVerfGE 93, 1 (16-17)) The principle of religious and ideological neutrality also bars the state from evaluating the faith and doctrine of a religious group as such (cf. BVerfGE 33, 23 (29)).

44

Under the understanding until now of the relationship between state and religion, as it is reflected in the case-law of the Federal Constitutional Court, this applies above all to the area of the compulsory school, for which the state has taken responsibility, and for which, by its nature, religious and ideological ideas have always been relevant (cf. BVerfGE 41, 29 (49); 52, 223 (241)). In this view, Christian references are not absolutely forbidden in the organisation of state schools; however, school must also be open to other ideological and religious content and values (cf. BVerfGE 41, 29 (51); 52, 223 (236-237)). In this openness, the free state of the Basic Law preserves its religious and ideological neutrality (cf. BVerfGE 41, 29 (50)). For the tensions that are unavoidable when children of different ideological and religious beliefs are taught together, it is necessary, giving consideration to the requirement of tolerance as the expression of human dignity (Article 1.1 of the Basic Law) to seek a balance (cf. BVerfGE 41, 29 (63); 52, 223 (247, 251); 93, 1 (21 ff.); for more detail, see dd) below).

45

bb) Article 6.2 sentence 1 of the Basic Law guarantees to parents the care and education of their children as a natural right, and together with Article 4.1 of the Basic Law it also includes the right to educate children in religious and ideological respects; it is therefore above all the responsibility of the parents to convey to their children the convictions in religious and ideological matters that they regard as right (cf. BVerfGE 41, 29 (44, 47-48); 52, 223 (236); 93, 1 (17)). Corresponding to this is the right to keep the children away from religious convictions that appear to the parents to be wrong or harmful (cf. BVerfGE 93, 1 (17)). However, Article 6.2 of the Basic law does not contain an exclusive right of education for the parents. Separately and in its sphere given equal rights beside the parents, the state, to which under Article 7.1 of the Basic Law the supervision of all education is delegated, exercises its own duty to provide education (cf. BVerfGE 34, 165 (183); 41, 29 (44)). How this duty is to be carried out in detail, and in particular to what extent religious references are to have their place at school, is subject within the limits laid down by the Basic Law, above all in Article 4.1 and 4.2 of the Basic Law, to the freedom of organisation of the Länder (cf. BVerfGE 41, 29 (44, 47-48); 52, 223 (242-243); for details, see dd) below).

46

cc) Finally, the freedom to exercise religious conviction relied on by the complainant conflicts with the negative freedom of faith of the pupils in her wearing of a headscarf at school and in lessons. Article 4.1 and 4.2 of the Basic Law, which protects equally the negative and the position manifestations of freedom of faith, also guarantees the freedom to stay away from cultic acts of a religion that is not shared; this also applies to cults and symbols in which a belief or a religion represents itself. Article 4 of the Basic Law leaves it to the individual to decide what religious symbols he or she recognises and reveres and which he or she rejects. Admittedly, in a society that affords space to differing religious convictions, he or she has no right to be spared cultic acts, religious symbols and professions of other faiths. But this must be distinguished from a situation created by the state in which the individual is exposed without an alternative to the influence of a particular faith, to the actions in which this manifests itself and the symbols through which it presents itself (cf. BVerfGE 93, 1 (15-16)). In this respect, Article 4.1 and 4.2 of the Basic Law have the effect of securing freedom precisely in areas of life that are not left to be organised by society itself but that the state has taken responsibility for (cf. BVerfGE 41, 29 (49)); this is affirmed by Article 140 of the Basic Law in conjunction with Article 136.4 of the Weimar Constitution, which prohibits forcing anyone to take part in religious exercises.

47

dd) The Basic Law gives the Länder a broad freedom of organisation in education; in relation to the ideological and religious character of state schools too, Article 7 of the Basic Law takes account of the fact that the Länder are to a large extent independent and within the limits of their sovereignty in education matters may in principle organise compulsory schools freely (cf. BVerfGE 41, 29 (44-45); 52, 223 (242-243)). The relationship between the positive freedom of faith of a teacher on the one hand and the state’s duty of religious and ideological neutrality, the parents’ right of education and the negative freedom of faith of the pupils on the other hand, taking into account the requirement of tolerance, is inevitably sometimes strained, and it is the duty of the democratic Land legislature to resolve this tension; in the public process of developing an informed opinion, the legislature must seek a compromise that is reasonably acceptable to everyone. When legislating, the legislature must orientate itself to the fact that on the one hand Article 7 of the Basic Law permits ideological and religious influences in the area of education, provided the parents’ right of education is preserved, and on the other hand Article 4 of the Basic Law requires that ideological and religious constraints are excluded as far as at all possible when the decision is made in favour of a particular form of school. The provisions must be seen together, and their interpretation and their area of influence must be coordinated with each other. This includes the possibility that the individual Länder may make different provisions, because the middle course that needs to be found may also take into account school traditions, the composition of the population by religion, and whether it is more or less strongly rooted in religion (cf. BVerfGE 41, 29 (50-51); 93, 1 (22-23)).

48

These principles also apply to the answer to the question as to the extent to which teachers may be subjected to duties as to their appearance and conduct at school, restricting their individual fundamental right of freedom of faith, in connection with the preservation of the ideological and religious neutrality of the state.

49

5. If teachers introduce religious or ideological references at school and teachers, this may adversely affect the state’s duty to provide education, which is to be carried out in neutrality, the parents’ right of education and the negative freedom of faith of the pupils. It at least opens up the possibility of influence on the pupils and of conflicts with parents that may lead to a disturbance of the peace of the school and may endanger the carrying out of the school’s duty to provide education. The dress of teachers that is religiously motivated and that is to be interpreted as the profession of a religious conviction may also have these effects. But these are only abstract dangers. If even such mere possibilities of endangerment or of a conflict as a result of the appearance of the teacher, rather than concrete behaviour that presents itself as the attempt to influence or even proselytise the schoolchildren for whom the teacher is responsible, are to be seen as an infringement of duties under civil-service law or as a lack of aptitude which prevents appointment as a civil servant, then, because this entails the restriction of the unconditionally granted fundamental right under Article 4.1 and 4.2 of the Basic Law, it requires a sufficiently specific statutory basis permitting it. This is lacking in the present case.

50

a) In considering the question of whether a specific form of dress or other outward sign has a religious or ideological significance in the nature of a symbol, attention must be paid to the effect of the means of expression used and to all possibilities of interpretation that are possible. Unlike the Christian cross (on this, see BVerfGE 93, 1 (19-20)), the headscarf is not in itself a religious symbol. Only in connection with the person who wears it and with the conduct of that person in other respects can it have such an effect. The headscarf worn by Muslim women is perceived as a reference to greatly differing statements and moral concepts:

51

As well as showing the desire to observe dress rules that are felt to be binding and have a religious basis, it can also be interpreted as a symbol for upholding traditions of the society of the wearer’s origin. In the most recent times, it is seen increasingly as a political symbol of Islamic fundamentalism that expresses the separation from values of western society, such as individual self-determination and in particular the emancipation of women. However, according to the findings of fact in the nonconstitutional courts, which were also confirmed in the oral hearing, this is not the message that the complainant wishes to convey by wearing the headscarf.

52

The expert witness Dr. Karakasoglu, who was heard in the oral hearing, carried out a survey of about 25 Muslim students at colleges of education, twelve of whom wore a headscarf, and on the basis of this survey she showed that the headscarf is also worn by young women in order to preserve their own identity and at the same time to show consideration for the traditions of their parents in a diaspora situation; in addition, another reason for wearing the headscarf that had been named was the desire to obtain more independent protection by signalling that they were not sexually available and integrating themselves into society in a self-determined way. Admittedly, the wearing of the headscarf was intended to document in public the value one placed on religious orientation in one’s own life, but it was understood as the expression of an individual decision and did not conflict with a modern lifestyle. As understood by the women questioned, preserving their difference is a precondition for their integration. It is not possible to make any statements that are representative of all Muslim women living in Germany on the basis of the interviews conducted and evaluated by the expert witness, but the results of the research show that in view of the variety of motive, the interpretation of the headscarf may not be reduced to a symbol of the social repression of women. Rather, the headscarf can for young Muslim women also be a freely chosen means to conduct a self-determined life without breaking with their culture of origin. Against this background, there is no evidence that the complainant, merely because she wears a headscarf, might for example make it more difficult for Muslim girls who are her pupils to develop an image of woman that corresponds to the values of the Basic Law or to put it into effect in their own lives.

53

To assess whether the intention of a teacher to wear a headscarf at school and in lessons constitutes a lack of aptitude, the decisive question is what effect a headscarf can have on someone who sees it (the objective standpoint of the onlooker); therefore all conceivable possibilities as to how the wearing of a headscarf might be regarded must be taken into account in the assessment. However, this has no effect on the fact that the complainant, who plausibly stated that she had religiously motivated reasons for her decision always to wear a headscarf in public, can rely for this conduct on the protection of Article 4.1 and 4.2 of the Basic Law, which is closely related to the paramount constitutional value of human dignity (Article 1.1 of the Basic Law; cf. BVerfGE 52, 223 (247)).

54

b) With regard to the effect of religious means of expression, it is necessary to distinguish whether the symbol in question is used at the instigation of the school authority or on the basis of one single teacher’s personal decision; such a teacher may rely on the individual right of freedom in Article 4.1 and 4.2 of the Basic Law. If the state tolerates teachers wearing dress at school that they wear by reason of a personal decision and that can be interpreted as religious, this cannot be treated in the same way as a state order to attach religious symbols at school (on this, cf. BVerfGE 93, 1 (18)). The state that accepts the religious statement of an individual teacher associated with wearing a headscarf does not in so doing make this statement its own and is not obliged to have this statement attributed to it as intended by it. The effect of a headscarf worn by the teacher for religious reasons may, however, become particularly intense because the pupils are confronted with the teacher, who is the focal point of lessons, for the whole time when they are at school without a possibility of escape. On the other hand, the teacher may differentiate when explaining to the pupils the religious statement made by a garment, and in this way she may weaken its effect.

55

c) There is no confirmed empirical foundation for the assumption that the complainant would commit an infringement of her official duty because of the feared controlling influence of her headscarf on the religious orientation of the schoolchildren.

56

In the oral hearing, the expert witness Professor Dr. Bliesener was heard on this point; he stated that from the point of view of developmental psychology there is at present no confirmed knowledge that proves that children are influenced solely because every day they meet a teacher who wears a headscarf at school and in lessons. Only if there were also conflicts between parents and teacher that might arise in connection with the teacher’s headscarf were onerous effects to be expected, in particular on younger pupils. The two other expert witnesses heard by the Senate, Ms Leinenbach, Director of the Psychology Department, and Professor Dr. Riedesser, presented no information that contradicted this. Such an unconfirmed state of knowledge is not sufficient as the basis of an official application of the indeterminate legal concept of aptitude, which encroaches substantially upon the complainant’s fundamental right under Article 4.1 and 4.2 of the Basic Law.

57

d) At all events, there was not a sufficiently definite statutory basis for rejecting the complainant for lack of aptitude as a result of her refusal to remove the headscarf at school and in lessons.

58

The school authority and the nonconstitutional courts present the view that the complainant’s intention to wear a headscarf as a teacher constitutes a lack of aptitude because pre-emptive action should be taken against possible influence on the pupils, and conflicts, which cannot be ruled out, between teachers and pupils or their parents should be avoided in advance; at present this view does not justify encroaching upon the complainant’s right under Article 33.2 of the Basic Law, which is equivalent to a fundamental right, nor the accompanying restriction of her freedom of faith. No tangible evidence could be seen in the proceedings before the nonconstitutional courts that the complainant’s appearance when wearing a headscarf created a concrete endangerment of the peace at school. The fear that conflicts might arise with parents who object to their children being taught by a teacher wearing a headscarf cannot be substantiated by experience of the complainant’s previous teaching as a trainee. The current civil service and school legislation in the Land Baden-Württemberg is not adequate to permit a prohibition on teachers wearing a headscarf at school and in lessons on the grounds of abstract endangerment. The mere fact that conflicts cannot be ruled out in future does not, in the absence of a legal basis designed for this purpose, justify deriving from the general civil-service-law requirement of aptitude an official duty on the part of the complainant to give up exercising her religious conviction by wearing a headscarf.

59

Under civil service law, in view of the state’s duty of religious and ideological neutrality at school described above under B. II 4. b) aa), neither the concept of aptitude contained in § 11.1 of the Baden-Württemberg Civil Service Act nor the duties for civil servants laid down in §§ 70 et seq. of the Baden-Württemberg Civil Service Act, which are to be taken into consideration as orientation in assessing the aptitude of an applicant for a public office, can serve as the basis for a duty of teachers not to permit their affiliation to a particular religion or ideology to be outwardly discernible, in order in this way to pre-emptively counter potential dangers.

60

Under § 70.1 sentence 1 of the Baden-Württemberg Civil Service Act, the civil servant serves all the people, and under § 70.1 sentence 2 the civil servant must fulfil his or her duties impartially and fairly, and must take account of the welfare of the public in carrying out his or her duties. Under § 70.2 of the Baden-Württemberg Civil Service Act, the civil servant must acknowledge the free democratic fundamental order of the Basic Law and stand up for its preservation in all his or her conduct. It is not apparent that the complainant would be prevented from doing this by wearing a headscarf. Nor does the requirement of moderation in § 72 of the Baden-Württemberg Civil Service Act, which provides that a civil servant who is involved in politics shall observe the moderation and restraint that follow from his or her position vis-à-vis the whole of society and from the consideration for the duties of his or her office, cover the case of wearing a headscarf for religious reasons. The same applies to the duty of civil servants to devote themselves with full dedication to their office (§ 73.1 of the Baden-Württemberg Civil Service Act), to exercise their office unselfishly to the best of their belief (§ 73.2 of the Baden-Württemberg Civil Service Act) and to base their conduct both on duty and off duty on doing justice to the respect and the confidence demanded by their profession (§ 73.3 of the Baden-Württemberg Civil Service Act). A prohibition preventing teachers at a state primary school and non-selective secondary school from wearing a headscarf for religious reasons and that restricts fundamental rights cannot be derived from these general duties under civil-service law. Finally, § 94 of the Baden-Württemberg Civil Service Act contains no regulations on a particular form of working dress for teachers.

61

Nor do the provisions in Articles 11 to 22 of the Constitution of the Land Baden-Württemberg of 11 November 1953 (Baden-Württemberg Law Gazette p. 173) on education and teaching and the Baden-Württemberg Education Act (Schulgesetz für Baden-Württemberg – SchG) as amended on 1 August 1983 (Baden-Württemberg Law Gazette p. 397), in particular §§ 1 and 38 thereof, contain any provision under which the general civil-service-law duties of moderation and restraint for teachers could be interpreted in concrete terms to mean that they were not permitted at school to wear any dress or other symbols that show that they belong to a particular religious group. At present, therefore, the necessary sufficiently definite statutory basis does not exist to decide that teachers of the Islamic faith, by reason of their declared intention to wear a headscarf at school, lack aptitude for service at the primary school and non-selective secondary school and thus to restrict their fundamental right under Article 4.1 and 4.2 of the Basic Law.

62

6. However, the Land legislature responsible is at liberty to create the statutory basis that until now has been lacking, for example by newly laying down the permissible degree of religious references in schools within the limits of the constitutional requirements. In doing this, the legislature must take into reasonable account the freedom of faith of the teachers and of the pupils affected, the parents’ right of education and the state’s duty of ideological and religious neutrality.

63

a) The Federal Administrative Court, in the judgment challenged, emphasised inter alia that with growing cultural and religious variety, where an increasing proportion of schoolchildren were uncommitted to any religious denomination, the requirement of neutrality was becoming more and more important, and it should not, for example, be relaxed on the basis that the cultural, ethnic and religious variety in Germany now characterised life at school too. In the oral hearing, the representative of the Stuttgart Higher Education Authority, Professor Dr. F. Kirchhof, argued that the state’s duty of ideological and religious neutrality in schools must now be treated more strictly, in view of the changed circumstances.

64

Social change, which is associated with increasing religious plurality, may be the occasion for redefining the admissible degree of religious references permitted at school. A provision to this effect in the Education Acts may then give rise to concrete definitions of teachers’ general duties under civil-service law, including duties with regard to their appearance, to the extent that the latter shows their affiliation to particular religious convictions or ideologies. It is therefore conceivable that there could also be statutory restrictions of the freedom of faith, in compliance with the constitutional requirements. If it is apparent from the outset that an applicant will not comply with such rules of conduct, this can be stated to the applicant as a lack of aptitude.

65

A provision prohibiting teachers from continuously showing their membership in a particular religious group or belief by external signs is part of the law determining the relationship between state and religion in schools. The religious diversity in society, which has evolved gradually, is reflected here particularly clearly. School is the place where differing religious views inevitably collide and where this juxtaposition has particularly great effects. Tolerant coexistence with people of other beliefs could be practised here with most lasting effect through education. This need not mean denying one’s own convictions; instead, it would give a chance for insight and to strengthen one’s own point of view, and for mutual tolerance that does not see itself as reducing all beliefs to the same level (cf. BVerfGE 41, 29 (64)). Reasons could therefore be given for accepting the increasing variety of religions at school and using it as a means for practising mutual tolerance and in this way making a contribution to the attempt to achieve integration. On the other hand, the development described above is also associated with a greater potential for possible conflicts at school. There may therefore also be good reasons to accord the state duty of neutrality in schools a stricter importance that is more distanced than it has been previously, and thus, as a matter of principle, to keep religious references conveyed by a teacher’s outward appearance away from the pupils in order to avoid conflicts with pupils, parents or other teachers.

66

b) It is not the duty of the executive to decide how to react to the changed circumstances, and in particular what rules of conduct with regard to dress and other aspects of behaviour towards schoolchildren should be imposed on teachers to define more specifically their general obligations under civil-service law and to preserve religious peace at school, and what requirements therefore are part of aptitude for a teaching post. Rather, it is necessary for the democratically legitimated Land legislature to make provisions in this respect. Only the legislature has a prerogative of evaluation to assess the actual developments; it depends on this assessment whether conflicting fundamental rights of pupils and parents or other values of constitutional status justify legislation that imposes on teachers of all religions extreme restraint in the use of symbols with religious reference; authorities and courts cannot exercise this prerogative of evaluation themselves (cf. BVerfGE 50, 290 (332-333); 99, 367 (389-390)). The assumption that a prohibition of wearing headscarves in state schools may be a permissible restriction of freedom of faith as an element of a legislative decision about the relation between state and religion in the education system is also in harmony with Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (cf. European Court of Human Rights, decision of 15 February 2001, Neue Juristische Wochenschrift 2001, pp. 2871 ff.).

67

aa) The constitutional necessity of legislation follows from the principle of the requirement of parliamentary approval. The principle of a constitutional state and the requirement of democracy oblige the legislature to pass the provisions essential for the realisation of fundamental rights itself (cf. BVerfGE 49, 89 (126); 61, 260 (275); 83, 130 (142)). How far the legislature must itself determine the guidelines necessary for the area of life in question depends on its relation to fundamental rights. The legislature does have such an obligation if conflicting fundamental civil rights collide with each other and the limits of each are fluid and can be determined only with difficulty. This applies above all if the fundamental rights affected, like positive and negative freedom of faith in the present case and the parents’ right of education are, by the wording of the constitution, guaranteed without a constitutional requirement of the specific enactment of a statute and a provision intended to organise this area of life is necessarily obliged to determine and specify their limits inherent in the Basic Law. Here, the legislature has a duty at all events to determine the limits of the conflicting guarantees of freedom at least to the extent that such a determination is essential to the exercise of these civil rights and liberties (cf. BVerfGE 83, 130 (142)).

68

When it is necessary for parliament to pass legislation can be decided only in view of the subject area and the nature of the object of constitutional definition involved. The constitutional criteria of evaluation here are to be derived from the fundamental principles of the Basic Law, in particular the fundamental rights guaranteed there (cf. BVerfGE 98, 218 (251)). Admittedly, the mere fact that a provision is politically controversial does not mean that it would have to be seen as essential (cf. BVerfGE 98, 218 (251)). Under the constitution, however, the restriction of fundamental freedoms and the balancing of conflicting fundamental rights are reserved to parliament, in order to ensure that decisions with such repercussions result from a procedure that gives the public the opportunity to develop and express its opinions, and that requires parliament to clarify the necessity and extent of encroachments upon fundamental rights in public debate (cf. BVerfGE 85, 386 (403-404)).

69

In the education system in particular, the requirements of a constitutional state and the principle of democracy of the Basic Law oblige the legislature to make the essential decisions itself and not to leave them to the school board (cf. BVerfGE 40, 237 (249); 58, 257 (268-269)). This also applies, and applies in particular, if and to the extent that, in reaction to changed social circumstances and increasing ideological and religious variety at school it is intended to respond with a stricter restraining of all religious references and thus to newly define the state’s duty of neutrality within the boundaries laid down by the constitution. Such a division is of considerable significance for the realisation of fundamental rights in the relationship between teachers, parents and children, and also the state.

70

bb) A provision that one of the duties of a teacher is to refrain in class from wearing a headscarf or any other indications of religious conviction is a material (wesentlich) provision in the meaning of the case-law on the requirement of parliamentary approval. It encroaches substantially upon the freedom of faith of the person affected. It also affects people belonging to various religions with varying intensity, depending on whether they regard the observance of particular dress customs as part of the exercise of their religion or not. As a result, it has special effects of exclusion for particular groups. Because of this relation to groups, the creation of such an official duty for teachers is of material significance, over and above its significance for the exercise of the individual fundamental right, for the function of social organisation inherent in the freedom of faith.

71

Finally, the introduction of an official duty that prohibits teachers from allowing their outward appearance to show their religion must be expressly laid down by statute, for one reason because such an official duty can only be justified and enforced in a constitutional manner – inter alia compatible with Article 33.3 of the Basic Law – if members of different religious groups are treated equally by it. This is not guaranteed to the same extent if it is left to authorities and courts to decide from case to case whether such an official duty exists and what its scope is, depending on their predictions as to the potential for influence and conflict of identifying characteristics of religious affiliation in the appearance of the teacher in question.

III.

72

As long as there is no statutory basis that indicates specifically enough that teachers at the primary school and non-selective secondary school have an official duty to refrain from identifying characteristics of their religious affiliation at school and in lessons, then on the basis of prevailing law it is incompatible with Article 33.2 in conjunction with Article 4.1 and 4.2 of the Basic Law and Article 33.3 of the Basic Law to assume that the complainant lacks aptitude. The decisions challenged by the constitutional complaint therefore infringe the legal position of the complainant guaranteed in these provisions. The judgment of the Federal Administrative Court is overturned and the matter is referred back to the Federal Administrative Court (§ 95.2 of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz ). It is to be expected that the proceedings can be concluded there on the basis of § 11.1 of the Baden-Württemberg Land Civil Service Act, which under § 127 number 2 of the Civil Service Law Framework Act admits an appeal on a point of law; in these proceedings, the decisive concept of aptitude must be interpreted and applied in accordance with the provisions – amended if applicable – of the law of school education of the Land .

73

The decision on the reimbursement of necessary expenses is based on § 34a.2 of the Federal Constitutional Court Act.

C.

74

This decision was passed by five votes to three.

(signed)

Hassemer

Sommer

Jentsch

Broß

Osterloh

Di Fabio

Mellinghoff

Lübbe-Wolff

Dissenting opinion

of the judges Jentsch, Di Fabio and Mellinghoff
on the judgment of the Second Senate of 24 September 2003

– 2 BvR 1436/02 –

75

The majority of the Senate assume that particular official duties of a civil servant, if they are connected to the civil servant’s freedom of religion or ideology, may be created only by a law passed by parliament. Until now, this view has been stated neither in case law nor literature, nor by the complainant herself. If this point of view is adopted, not only does the fundamental constitutional question submitted to the court as to the state’s neutrality in the school’s sphere of training and education remain undecided; the view also results in an erroneous weighting, not based on the Basic Law, in the system of the separation of powers and in the understanding of the normative power of fundamental rights in connection with access to public offices. The decision disregards the expressly stated intention of the Baden-Württemberg Land parliament that it would not pass a formal statute by reason of the complainant’s case; in addition, it leaves the parliament uncertain as to how a constitutional provision can be made. Finally, the majority of the Senate give the Land legislature no possibility of preparing itself for the new situation under constitutional law that the Senate assumes will exist, and neglects to inform the judiciary and the administration how they are to proceed until a Land statute is passed.

I.

76

In order to justify the constitutional requirement that a statute must be specifically enacted, the majority of the Senate wrongly assume that there was a serious encroachment upon the complainant’s freedom of religion and ideology. In this they fail to appreciate the functional restriction, with regard to civil servants, of the protection of fundamental rights. In the case of access to a public office, there is no open situation where legal interests of equal value are weighed up; the legal relationship that is essential to the realisation of fundamental rights at school is shaped in the first instance by the protection of the fundamental rights of pupils and parents.

77

1. Those who become civil servants place themselves by a free act of will on the side of the state. A civil servant can therefore not rely on the effect of the fundamental rights to guarantee freedom in the same way as someone who is not part of the state organisation. In exercise of their public office, therefore, civil servants are protected by the promise of freedom as against the state guaranteed by fundamental rights only to the extent that no restrictions arise from the special reservation to civil servants of the exercise of sovereign powers. Teachers with the status of civil servants, even within the scope of their personal pedagogical responsibility, do not teach in exercise of their own freedom, but on the instructions of the general public and with responsibility to the state. Teachers who are civil servants therefore from the outset do not enjoy the same protection by fundamental rights as parents and pupils: instead, the teachers are bound by the fundamental rights because they share in the exercise of state authority.

78

In formulating official duties for the civil servants, the state administrative authority also fulfils the requirements of its obligation under Article 1.3 of the Basic Law; the civil servant’s official duty is the reverse side of the freedom of the citizen who is confronted by state authority in the person of the official. If official duties are imposed on the teacher for the exercise of his or her office, therefore, this is not a matter of encroachments upon society outside the state-controlled sphere or an occasion for the ensuing call for law passed by parliament to protect the citizen. The state relies on official duties to ensure in its internal sphere uniform administration complying with statute and the constitution.

79

The majority of the Senate did not take this difference in structure adequately into account. As a result, the situation of the teacher on the one hand and of the pupils and parents on the other hand, which differ with regard to fundamental rights, are not correctly understood. In particular the legal position of the applicant, who has no legal claim to enter the sphere of state control as he or she desires, may not be seen under the aspect of a subject of fundamental rights defending himself or herself against the state. Voluntary entry into the status of a civil servant is a decision made by the applicant in freedom, choosing obligation to the public interest and loyalty to an employer that, in a democracy, acts for the people and is monitored by the people. A person who wishes to become a civil servant may therefore not reject the requirement of moderation and of occupational neutrality, neither in general nor with reference to specific official or private constellations that can be recognised in advance. At all events it cannot be reconciled with these duties if the civil servant plainly uses his or her employment, within the sphere of that civil service, as a space to profess beliefs, and thus effectively as a stage on which to develop the civil servant’s own fundamental rights. The duty conferred on the civil servant consists in expertly, objectively, dispassionately and neutrally assisting in giving effect to democratic intention, that is, the intention of legislation and of the responsible government, and in taking second place as an individual where the civil servant’s claims to realisation of his or her personality are likely to create conflicts in his or her employment and thus obstacles to the realisation of democratically formed will.

80

2. Civil servants are fundamentally different from those citizens who are subjected to a special status relationship by measures of public authority but do not in this connection enter the sphere of the state, merely a special legal relationship, such as pupils and their parents, who have the right to educate them, in the compulsory state school (BVerfGE 34, 165 (192-193); 41, 251 (259-260); 45, 400 (417-418); 47, 46 (78 ff.)) or prisoners in prison (BVerfGE 33, 1 (11)). It is therefore an error to believe that it is possible to fight another battle for the Basic Law’s idea of freedom, following the struggle against the institution of the special relationship of subordination (besonderes Gewaltverhältnis) , by emphasising fundamental rights positions in the internal sphere of the civil service. The opposite is the case. If one sees teachers, who are bound by fundamental rights, primarily as subjects of fundamental rights, and thus sees the teacher’s personal liberty rights in opposition to those of pupils and parents, one reduces the freedom of those for whose sake the theory of materiality (Wesentlichkeitstheorie , the theory that material decisions must be laid down by the legislature rather than decided by the executive), broadened the constitutional requirement in school education law that matters should be specifically enacted in statutes.

81

The relationship of the civil servant to the state is a particular relationship of proximity with its own inherent rules, which are recognised by the constitution and regarded as worth preserving. Under the balanced concept of the Basic Law, civil servants are certainly intended to be freedom-conscious citizens – if not, loyalty to the free constitution would only be lip service – but at the same time they are to observe the fundamental priority of official duties and the intention of the democratic institutions embodied in it. As a personality, the civil servant is not a mere “instrument of execution”, even if he or she decides to work for the public good. Those who wish to become civil servants, however, must loyally identify themselves with the constitutional state in important fundamental questions and when observing their official duties, because the state, conversely, is represented by its civil service and is identified with the concrete civil servant. All the principles of the permanent civil service are dominated by this idea of reciprocity and proximity.

82

Fundamental personal liberty rights of a civil servant or of a person applying for a public office are therefore from the outset guaranteed only to the extent that they are compatible with these laws inherent to the civil service. They form part of these necessities of the civil service if there is no fear of obstructions to the working routine. Any other approach than such a priority of the exercise of sovereign powers with regard to fundamental rights of the civil servants in office would be incompatible with the constitutional requirement of practical concordance. Failing this, the interpretation of the constitution would give rise to a contradiction that is not contained in the Basic Law itself. The fundamental rights are intended to guarantee distance between political power and society outside state control, and they are not intended to take effect in the very context where the constitution intends there to be a particular proximity and therefore excludes mutual distancing.

83

The fundamental rights preserve distance between citizens and state authority precisely in order to place limits upon state rule (Loschelder, in: Isensee/Kirchhof (eds.), Handbuch des Staatsrechts , vol. V, 2nd ed., 2000, § 123, marginal number 16; Di Fabio, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, VVDStRL, 56, p. 235 (253-254)). This most elevated function of the fundamental rights may not, however, develop without restriction where the distance is specifically intended to be removed by incorporation into the state and therefore the constitution does not intend the distance to exist. In a relationship of proximity that is institutionally desired by the constitution, therefore, the most basic function of a fundamental right cannot assert itself without calling into question the relationship of proximity and the constitution’s decision in favour of a democratically guided civil service.

84

3. The evaluation of aptitude in connection with the special right of equality under Article 33.2 of the Basic Law must not be mistaken for an encroachment upon the freedom under Article 4.1 of the Basic Law.

85

The requirement and, as it were, the normal case of classical civil rights and liberties is an intrusion by state authority into the sphere of the citizen. The constellations in which the citizen approaches the state, claims benefits from the general public or offers his or her services to the general public deviate from this normal case. Here, state authority does not intrude on society, but subjects of fundamental rights seek proximity to the state organisation, desire the state to act, seek a legal relationship.

86

The constitutional complaint challenges the violation of Article 33.2 in conjunction with Article 33.3 of the Basic Law and therefore relies on a special right of equality. If rights of equality are asserted in isolation or connection with a claim for performance, however, the constitutional requirement of the specific enactment of a statute cannot be relied on. The infringement of equality does not give rise to an encroachment upon a right of freedom that could trigger the requirement of the specific enactment of a statute. The constellation surrounding the encroachment is different: the appointment of a teacher whose person does not offer a guarantee that he or she will carry out his or her duties neutrally in class indirectly affects fundamental rights of the pupils and their parents; as a result, at best there could be a discussion as to whether a statute is necessary with regard to protecting the freedom of the pupils and parents.

87

If the state forbids a person to wear a headscarf, which is at least in part motivated by religion, in a public place, it undoubtedly encroaches upon the fundamental right of freedom of religion. If the civil servant, on the other hand, wishes to display indications that are understood as religious in a space that the constitution has already defined as neutral – in this case when teaching in a compulsory state school – and as a representative of the general public, the civil servant is not exercising, in the social sphere, a freedom to which he or she is entitled as an individual. The civil servant’s exercise of freedom at work is from the outset restricted by the necessities and above all the constitutional definition of the office; if this were not so, the realisation of the will of the people would fail for an excess of personal liberty rights on the part of the representatives of the state. When carrying out his or her official duties, the teacher must respect the fundamental rights of the pupils and their parents; the teacher is not merely on the state’s side, but the state also acts through the teacher. Those who see the civil servant, except in questions of status, as having unrestricted fundamental rights vis-à-vis the civil servant’s employer dissolve the boundary that has been drawn, in order to create liberty for children and parents, between the state and society. In this way they accept the risk that the democratic development of informed opinion will become more difficult, and in place of this they prepare the way for the courts to weigh the fundamental rights of teachers, parents and pupils, a process which is difficult to monitor.

88

4. Finally, another reason for which there is no need for a statute is that the evaluation of the aptitude of a civil servant has indirect effects in a legal relationship that is material for fundamental rights. Admittedly, in the past the application of the constitutional requirement in education law that a statute be specifically enacted was extended for the sake of the parents and pupils, but not to protect the teachers who were civil servants. The situation of civil servants, as a relationship of particular proximity between citizen and state, was, unlike education law with its character of a benefit directed outwards and affecting the rights of parents, specifically not understood as a legal relationship shaped by the civil servant’s claim to fundamental rights (cf. Oppermann, Verhandlungen des 51. Deutschen Juristentages 1976 , vol. I, part C, reports, Nach welchen rechtlichen Grundsätzen sind das öffentliche Schulwesen und die Stellung der an ihm Beteiligten zu ordnen? , C 46-47).

89

From the point of view of materiality, therefore, it could be of significance only if a Land permitted the headscarf, or other religious or ideological symbols likely to lead to conflict, in class. For then, even without the encroachment upon fundamental rights affecting the rights of pupils and parents, already specifically asserted, a dangerous situation from the point of view of fundamental rights would have arisen that needed to be legislated for. An extension of the constitutional requirement of the specific enactment of a statute, under the aspect of materiality, to include civil rights and liberties of the teacher in exercising his or her official duties, on the other hand, has not yet been advocated.

II.

90

The civil servant’s duty of neutrality follows from the constitution itself; it does not need to be further supported by Land statutes. Civil servants who give no guarantee that in their conduct as a whole they will carry out their duties neutrally and in a way appropriate to the requirements of the particular employment lack aptitude in the meaning of Article 33.2 of the Basic Law (cf. BVerfGE 92, 140 (151); 96, 189 (197)).

91

The grounds given by the majority of the Senate push the constitutional personal liberty rights a long way into civil-service law without giving appropriate weight to the structural decision made by the Basic Law in Article 33 of the Basic Law. These grounds can therefore not be brought into accord with fundamental statements of the constitution on the relationship between society and state. In particular, they misjudge the position of the civil service in realising democratic will.

92

1. Those who aspire to a public office seek in the status activus (rights to take part in a democratic state) proximity to public authority and, like the complainant, wish to create a particular relationship of service and loyalty to the state. This particular position of duty, which is constitutionally protected by Article 33.5 of the Basic Law, takes precedence over the protection of the fundamental rights (cf. BVerfGE 39, 334 (366-367)), which in principle applies to civil servants too, to the extent that the duty and purpose of the public office so require. Accordingly, the citizen’s right arising under Article 33.2 of the Basic Law grants equal access to public offices only if the applicant fulfils the factual requirements of the right, which is equivalent to a fundamental right – aptitude, qualifications and professional achievement. The employer is authorised and constitutionally obliged to determine that an applicant is fit for a public office (Article 33.2 of the Basic Law).

93

In this discretionary decision, it is necessary to assess aptitude, qualifications and professional achievement; this is an act of evaluative decision-making, and it is to be reviewed by the court only to a restricted extent, to determine whether the administrative authority based the assessment on incorrect facts and whether it misjudged the civil-service-law and constitutional-law framework within which it can move without restriction. Apart from this, since there is no right to be accepted into the status of a civil servant, the review is restricted to checking for arbitrariness (cf. BVerfGE 39, 334 (354)). The interpretation of the indeterminate legal term “aptitude” necessitates a predictive decision in which the employer must comprehensively evaluate all the characteristics that the office in question requires of its holder (cf. BVerfGE 4, 294 (296-297); BVerwGE 11, 139 (141)).

94

Here, the employer must also give a prediction as to whether the applicant will fulfil his or her professional duties in future in the office sought. Aptitude includes not only a guarantee that the civil servant is equal to the professional tasks, but also that the civil servant’s person satisfies the fundamental requirements that are indispensable for the exercise of a public office that has been conferred. One of these requirements, which are protected by Article 33.5 of the Basic Law with constitutional status, is the guarantee that the civil servant will observe his or her official duties neutrally. What degree of restraint and neutrality can be required of the civil servant in the individual case is determined not only by general principles, but also by the concrete requirements of the office.

95

2. The state whose constitution is the Basic Law needs the civil service in order that the will of the people may take effect in practice. The civil service realises the decisions of parliament and of the responsible government; it puts the principle of democracy and the constitutional state into a concrete form (Article 20.1 of the Basic Law). The design of the constitution aims at democratic rule in a legally constituted form. Both the legislation passed by parliament and the political leadership given by the government therefore require the neutral civil service with its expert knowledge (cf. BVerfGE 7, 155 (163)). Statute and law are a promise for the citizen who is subject to state authority that the form in which a fact situation will be legislated on will be abstract and general and without respect of person. In conformity with this, the civil servant too, who is called to implement the law and to realise the political will of the government in a legal form, acts as a neutral fiduciary vis-à-vis the citizen.

96

The decision in favour of the constitutional state requires the civil servant to be bound by statute, as a counterweight to the political leadership of the government. He or she realises the democratic will. Under the design of the Basic Law, sovereign duties are normally assigned to civil servants (Article 33.4 of the Basic Law). The permanent civil service, founded on factual knowledge, expert performance and loyal fulfilment of its duties, is intended to secure a stable administration and thus to act as a balancing factor in face of the political forces that shape life in the polity (cf. BVerfGE 7, 155 (162); 11, 203 (216-217)). Civil servants must carry out their tasks impartially and justly; in exercising their office they must take account of the public welfare, be loyal to the state and behave, both inside and outside their office, in such a way that they do justice to the respect and the trust that their position requires (cf. § 35.1 of the Civil Service Law Framework Act; § 73 of the Baden-Württemberg Land Civil Service Act). Their conduct in office must be oriented solely towards factual correctness, faithfulness to the law, justice, objectivity and the public interest. These obligations form a fundamental basis for the trust of the citizens that the duties of the democratic constitutional state will be fulfilled.

97

3. The requirement of neutrality and moderation for civil servants that follows from this is one of the tradition fundamental principles of the permanent civil service (Article 33.5 of the Basic Law); it has been enacted in nonconstitutional law in sections 35.1, 35.2 and 36 of the Civil Service Law Framework Act and in the civil service Acts of the Länder (cf. § 72 of the Baden-Württemberg Land Civil Service Act: cf. BVerfGE 7, 155 (162); Battis in: Sachs, Grundgesetz 3rd ed., Article 33, marginal number 71; Lübbe-Wolff in: Dreier, Grundgesetz , vol. II, 1998, Article 33, marginal number 78). This corresponds to the basic duty of neutrality of the state, which also applies in the sphere of religion and ideology, which is derived precisely from the freedom of faith of Article 4 of the Basic Law in conjunction with Article 3.3, Article 33.3 of the Basic Law and from Article 140 of the Basic Law in conjunction with Article 136.1, 136.4 and Article 137.1 of the Weimar Constitution (cf. BVerfGE 19, 206 (216); 93, 1 (16-17); 105, 279 (294)). To this extent, the principles of the permanent civil service under Article 33.5 of the Basic Law create a direct constitutional reservation that in advance restricts the scope for civil servants to exercise their fundamental rights: to protect the fundamental rights of those who are not integrated into the state organisation.

98

The previous case-law of the Federal Constitutional Court derived rights and duties of the civil servant directly from Article 33.5 of the Basic Law. Nonconstitutional provisions governing the civil servant’s rights and duties are possible and to a certain extent desirable here, but they are not constitutionally required (BVerfGE 43, 154 (169-170)). The duties of the civil servant created directly under Article 33.5 of the Basic Law include moderation and restraint, in particular when carrying out his or her official business. If the civil servant in office behaves in a way that is not neutral politically, ideologically or in religion, he or she violates his or her official duties if the behaviour is objectively likely to lead to conflicts or obstruction in observing public duties (cf. BVerfGE 39, 334 (347)). Especially in religious and ideological matters, the civil servant must be restrained, because this is required of the state for whom the civil servant acts, for the sake of the freedom of the citizens.

99

Under Article 4.1 of the Basic Law and under Article 3.3 sentence 1, Article 33.3 and Article 140 of the Basic Law in conjunction with Article 136.1, 136.4 and 137.1 of the Weimar Constitution, the state and its institutions are obliged to conduct themselves neutrally in questions of religious and ideological belief and not to endanger religious peace in society (BVerfGE 105, 279 (294)). For this reason too, when the civil servant first joins the civil service he or she must, constitutionally, already offer a personal guarantee of neutral conduct that neither provokes nor challenges in carrying out his or her future duties (Article 33.5 of the Basic Law).

100

4. What degree of restraint and neutrality can be required of the civil servant in the individual case is determined not only by these general principles, but also by the concrete and changing requirements of the office. These requirements too need not be separately laid down by statute as official duties, because it is a specific mark of the permanent civil service that official duties are not understood as restrictions on the civil servant’s freedom, but are laid down by the employer in accordance with the relevant needs of a constitutional and factually effective administration. The standard for the assessment of aptitude is marked out for the authority in its essential lines in this respect too by Article 33.5 of the Basic Law with regard to the principle of neutrality and moderation. These principles, which constitutionally apply directly, need no further statutory definition, even in relation to school. The nonconstitutional-law requirements of the civil servant’s duty of political neutrality are to this extent declaratory and not integral to the assessment of aptitude on entry into public offices in the meaning of Article 33.2, Article 33.5 of the Basic Law.

101

The general duty of neutrality applies to a particular degree for civil servants who exercise the office of a teacher at state schools. Teachers carry out the state’s duty to provide education and training (Article 7.1 of the Basic Law). In this, they have direct pedagogical responsibility for teaching and the education of the pupils. By reason of their function, they are put in a position to exercise influence on the development of the pupils entrusted to them in a way comparable to the parents. Connected with this is a restriction of the parents’ right of education, which is guaranteed as a fundamental right (Article 6.2 sentence 1 of the Basic Law); this restriction can be accepted only if schools endeavour to achieve objectivity and neutrality not only in the political sphere, but also in religious and ideological matters. One reason why this is the case is that under Article 6.2 sentence 1 of the Basic Law the parents also have the right to bring up children in religious and ideological respects and they can in principle keep convictions that they feel are wrong away from their children (cf. BVerfGE 41, 29 (48); 41,88 (107)).Observing these rights is one of the essential duties of school, required by the Basic Law itself; at the same time, they are a mirror image of the official duties to be observed by the teachers.

III.

102

A teacher at a primary school or non-selective secondary school violates official duties if, in lessons, she uses symbols as part of her dress that are objectively likely to result in obstacles at school or even constitutionally significant conflicts in relation to school. The uncompromising wearing of the headscarf in class that the complainant seeks is incompatible with the requirement for a civil servant to be moderate and neutral.

103

1. When civil servants exercise a public office, even if they are modern, open and courageous, fundamental rights are guaranteed by the constitution only if there is no suspicion that there will be a marked conflict with the employer’s development of informed political opinion and no obstacle to the exercise of the public office conferred. When the majority of the Senate assume that only the existence of tangible evidence of a “concrete endangerment of the peace of the school” is sufficient to deny the aptitude of an applicant for a civil service post, they misjudge the standard for the assessment of aptitude.

104

The Senate majority themselves also admit that religiously motivated dress of teachers may influence schoolchildren, lead to conflicts with parents and in this way disrupt the peace of the school. In the case of conflict in particular, they state, it must also be expected that there will be onerous effects on younger pupils. This potential situation of danger, however, cannot be cited in response to a prospective teacher at the stage of “abstract danger”, but only when tangible evidence of the endangerment of the peace of the school has materialised. In this view, if conflicts have not crystallised, the authority making the appointment can no longer find there is a lack of aptitude.

105

In this view, the majority of the Senate misjudge the standard of evaluation for the assessment of aptitude under Article 33.2 of the Basic Law. For because the removal from office of a person retaining civil service status for life on account of violation of his or her official duties is possible under the traditional principles of permanent civil service only to a restricted extent and by way of formal disciplinary proceedings, the employer must in advance see to it that no-one becomes a civil servant who cannot be guaranteed to observe the official duties under Article 33.5 of the Basic Law. The constitutionally legitimate means for this is the consideration and decision of whether the applicant has the necessary aptitude for the office applied for. Doubts as to this that cannot be removed permit the appointing authority to make a negative prediction, since here it is not possible to establish aptitude positively (cf. BVerfGE 39, 334 (352-353)). Preventive measures to protect children and the parents’ right of education, moreover, do not in principle require that a situation of danger be scientifically and empirically proved (cf. BVerfGE 83, 130 (140)).

106

Reference to the concept of “abstract danger”, which is taken from police law, cannot therefore appropriately solve the conflicts in the assessment of aptitude. On the contrary: the free constitutional state is prohibited from postponing denying that civil servants have the necessary aptitude until it becomes probable that their foreseeable conduct in office will cause damage to particular objects of legal protection, as the concept of danger implies. The distinction between concrete and abstract danger may therefore be used to describe the classical threshold of interference in the relationship between the citizen and the state, but not to describe the standard for the discretion in appointment incumbent on state administration. It cannot accord with the civil-service-law reservation to civil servants of the exercise of sovereign powers if the constitutional state would have to rely on the threshold of danger under police law against its own civil servants who represent the state and through whom the state acts in order to control their conduct in office. This applies all the more in that the complainant wishes to teach primary school and non-selective secondary school pupils in a state compulsory school, that is, in an area that is sensitive for pupils and parents from the point of view of fundamental rights. In this respect it is therefore not a question of potential dangers or modalities of danger under police law, but merely whether the school authority, in putting into specific terms not only provisions of Land law, but also the constitutionally valid principles of permanent civil servants in the meaning of Article 33.5 of the Basic Law assumed on a basis that can be followed that there was a risk of a violation of duty. This is clearly the case.

107

2. The school board, on the evidence of the record of the conversations relating to aptitude and according to the statements in the oral hearing before the Federal Constitutional Court, certainly showed understanding of the complainant’s religious convictions; conversely, however, the complainant clearly showed no understanding for the employer’s desire to show neutrality. Except in extreme cases such as the immediate threat of violence, she found she would not be capable of refraining from wearing a symbol of strong religious and ideological expressiveness while teaching. Apart from the fact that this rigidity gives rise to doubts as to the complainant’s prior loyalty to the political aims of her employer and the order of values in the Basic Law, inter alia in a possible conflict with religious convictions of Islam, in this way, even at the early stage of evaluation of aptitude, circumstances became known that would make it substantially more difficult to use the applicant in every function at school and that would bring the Land authority of the state into conflicts with pupils and their parents, but possibly also with other teachers, that can be predicted even today.

108

The headscarf worn by the complainant is here not to be assessed abstractly or from the point of view of the complainant, but in her concrete relationship to school. The requirements of the office of a teacher at the primary school and non-selective secondary school include the duty to avoid for his or her person political, ideological or religious symbols that are objectively expressive. In the teaching profession, teachers must refrain from using such meaningful symbols, which are likely to awaken doubts as to their neutrality and professional distance in topics that are controversial politically or from the point of view of religion or culture. Here it cannot be relevant what subjective meaning the teacher who is a civil servant associates with the symbols he or she uses. What is decisive is the objective effect of the symbol.

109

Assessing such an effect in concretely changing situations is fundamentally the duty of the employer and can be reviewed for plausibility and conclusiveness by courts only to a limited extent. The professionally competent administration is best suited to carry out the assessment; putting official duties into specific terms is traditionally a domain of the employer. In doing this, the employer must react to changing situations. The use of symbols changes over the course of time, as does the violence of the resonance created by them: sometimes slogans on political badges (e.g. “Stop Strauß”; “Nuclear Power – No Thanks”) are in the foreground, sometimes symbols derived from religion such as the orange-coloured dress of the followers of Bhagwan (Osho) (BVerwG, Neue Zeitschrift für Verwaltungsrecht, NVwZ 1988, p. 937). The employer, in the last instance the competent Land minister in his parliamentary and political responsibility, with his particular expertise with regard to the requirements for functions in the school situation, must assess in each case what use of symbols by the civil servant is compatible with the requirements of civil-service law in general and with the special requirements in the teaching profession, or is to be prohibited.

110

3. A distinction between abstract and concrete danger, such as the majority of the Senate regard as significant, is of no importance here, and as a result has to date not been relied on to determine official duties or in connection with decisions as to aptitude. All that is important if there are proceedings at a nonconstitutional court challenging the decision as to aptitude is whether the assessment that particular symbols are incompatible with the requirement of neutrality in the civil service was based on a clearly erroneous factual foundation or on conclusions that cannot be understood.

111

The assumption on which the decisions challenged rest, that if the complainant were employed in a general primary school or non-selective secondary school in Baden-Württemberg there would be apprehension of possible interference with the peace of the school is understandable. The majority of the Senate also assume that a teacher who permanently wears the headscarf in lessons as an Islamic symbol does at least give rise to “abstract danger”. A symbol worn by the teacher that is – at present – expressive and has objective religious, political and cultural meaning is indeed likely to encroach upon the negative freedom of religion of pupils and parents and upon the parents’ right of education (Article 6.2 of the Basic Law). Especially the wearing of a garment that unequivocally indicates a particular religious or ideological conviction of a teacher at state schools may encounter lack of understanding or rejection among pupils who are of a different opinion or the persons entitled to educate them and may affect this category of persons in their fundamental right of negative freedom of belief because the pupils cannot escape such a demonstration of religious conviction.

112

Teaching and education at state schools are benefits given by the state; accepting these benefits has been made a statutory duty for the children. For children and their parents, therefore, taking part in school lessons is for all intents and purposes unavoidable. In addition, the children’s opportunities in life depend substantially on their level of achievement and on the competence of school institutions and their practice with regard to appropriate support and education. Consequently, neither the parents nor the state can reasonably be expected to wait and see how conflicts develop in the individual case when a future conflict situation becomes evident during the job interview. In addition, it seems likely that some parents will fail to protest because they fear there might be disadvantages for their child if they did so. The possibility that peace at school might be disrupted has, apart from this, already taken on a concrete form in the case of the complainant, as is shown by experience in teaching practice and the negative reaction of other teachers.

113

4. The assumption of the majority of the Senate that the cross on a classroom door and the headscarf of a teacher in class are not comparable, a comparison decided in favour of the complainant, misjudges the fundamental rights position of the pupils and parents affected. The decisive factor here is the influence to which the individual pupil in a compulsory state school and under state responsibility is subjected. If, in surroundings with a Christian influence, a cross hangs above the school door – not a large crucifix behind the teacher (cf. BVerfGE 93, 1 (18)) – this can scarcely any longer be regarded as an encroachment upon the negative freedom of religion or the parents’ right of education. Children have too few associations with a mere everyday object on the wall that has no immediate relation to a concrete person or real-world fact situation. The cross, over and above its religious significance, is too much a general cultural symbol for a culture, fed by Jewish and Christian sources, bound by values but open, that has become tolerant as a result of wide historical experience, some of it painful.

114

In contrast, teachers, as persons and as personalities, have a material moulding effect on the children, especially at primary school and in the function of class teachers. If a teacher wears striking dress, this creates impressions, gives rise to questions and encourages imitation. In the oral hearing, the expert witness Professor Dr. Bliesener stated on this point that the conduct of the teacher encourages the pupils to imitate it: this happens because the pupils at a primary school often have a close emotional relationship, and the teacher is also expect to aim for this, for pedagogical reasons, and because the attention of children is clearly directed at the teacher and the teacher’s authority is also perceived in the context of the school.

115

The complainant’s statement that if there were questions about the headscarf she would answer these untruthfully and in contradiction to her religious conviction, saying it was only a fashion accessory, is not appropriate to avoid a conflict of fundamental rights. For children too are aware of the religious significance of wearing a headscarf permanently, that is, even indoors. In addition, schoolchildren interact not only with the teacher, but also with their parents and wider social surroundings. Parents who answer their children’s questions truthfully within their own understanding of education will not be able to avoid explaining that the teacher wears the headscarf because only in this way can she preserve in public her dignity as a woman. But here there are the seeds of a conflict with the moral concepts of children with non-Islamic parents, and possibly even with Islamic parents who do not believe in a requirement that women cover themselves in public. The objective irritation effect of a symbol that is also political and cultural may easily reach the child, by way of reactions in its social surroundings, and lead the child to ask whether, in a conflict of values that it cannot judge, it should take the side of the teacher or the side of its social surroundings, which decidedly reject the headscarf, and which may include its parents. In the oral hearing, the expert witness Professor Dr. Bliesener in this connection referred to the possibility that children of primary school age might be emotionally overtaxed if a permanent conflict developed between the teacher on the one hand and the parents or individual parents on the other hand.

116

5. In order that an official duty, directed towards moderation in the civil servant’s dress, can lawfully be put into concrete terms by the employer, no empirical proof of “dangerous situations” is needed, and still less is it necessary for the Land legislature to carry out scientific surveys in order to establish the “endangerment”. A constitutional requirement of the specific enactment of a statute with a duty for the legislature to offer proof, for the mere purpose of putting official duties into concrete terms and ordering them to be applied, is not merely foreign to the system, but also takes the free constitutional state further into an immobility that obstructs its effectiveness. It is quite adequate for the assessment of aptitude that the use of meaningful symbols as part of dress a conflict appears reasonably possible or even likely.

117

This is the case, because the headscarf clearly, at least in part, carries a heavy symbolic meaning as a symbol of political Islamism – this is shown even by the public reactions to the court proceedings instigated by the complainant – and corresponding defensive reactions are to be expected. This objective content also includes the emphasis of a moral distinction between women and men that is likely to lead to conflicts with those who in turn support equality, equal value and equal treatment in society of women and men (Article 3.2 of the Basic Law) as a high ethical value.

118

The assessment that permanently wearing a headscarf in lessons is incompatible with the civil servant’s duty of ideological and religious neutrality was convincingly described as free from errors in all three administrative-court judgments. The headscarf as a religious and ideological symbol for the necessity that women cover themselves in public is at all events at present objectively likely to give rise to contradiction and polarisation.

119

6. The complainant stated that she felt her dignity was violated if she appeared in public with her hair uncovered. Even if the complainant did not expressly state it in so many words, this suggests the converse conclusion that a woman who does not cover her head gives up her dignity. Such a distinction is objectively qualified to give rise to values conflicts at school. This applies even in the relationship between the teachers, but particularly in relation to parents; their children, experience shows, develop a special relationship to their teacher in the primary school in particular.

120

Whether it is politically or pedagogically right or wrong to confront children as soon as possible with other standards of value or a lives based on a different understanding of the dignity of women than that of their parents is legally immaterial. The only significant factor is whether the appointing authority’s assessment is understandable when it argues that there is a possibility of conflicts at school that could perfectly well have been avoided if the teacher had shown moderation in this respect. The responsible school board assumed without error that this was the case.

121

The headscarf, worn as the uncompromising compliance with an Islamic requirement that the complainant assumed existed for women to cover themselves, at present represents for many people inside and outside the Islamic religious group for a cultural and political statement with a religious foundation, relating in particular to the relationship of the sexes to each other (cf. e.g. Nilüfer Göle, Republik und Schleier , 1995, pp. 104 ff.; Erdmute Heller/Hassouna Mosbahi, Hinter den Schleiern des Islam , 1993, pp. 108 ff.; Rita Breuer, Familienleben im Islam 2nd ed. 1998, pp. 81 ff.; Tariq Ali, Fundamentalismus im Kampf um die Weltordnung , 2002, pp. 97ff.). The majority of the Senate did not attach enough significance to this circumstance. As a result, they also did not consider the question as to whether, among the adherents of the Islam faith in Germany, there was a not insignificant or even growing number of people who regard the headscarf and the veil as a cultural challenge made to a society whose value system they reject, and above all, whether defensive reactions are to be expected from among the majority of the citizens of different faiths, and if so, what form these reactions might take. At all events, important commentators on the Koran are also of the opinion that the requirement that women cover their heads is based on the necessity of keeping women in their role of serving men, independently of the question as to whether a strict requirement to this effect even exists. This distinction between men and women is far removed from the values of Article 3.2 of the Basic Law.

122

It is therefore not important whether such an opinion is the only valid opinion within Islamic society or merely the predominant opinion, or whether the opinion submitted by the complainant in the proceedings, that the headscarf is, instead, a sign of the growing self-confidence and emancipation of women of Islamic faith, is held by a large number of persons. It is sufficient that the opinion that if women cover their heads this guarantees that they are subordinated to men is clearly held by a not insignificant number of the adherents of the Islam religion and is therefore likely to lead to conflicts with the equal rights of men and women, which is strongly emphasised in the Basic Law too.

123

7. In the claim asserted by the complainant to the right to work as a schoolteacher wearing a headscarf, she enters a grey area that is culturally and legally problematic and full of tension. Even one further step to completely covering her face, which is also practised in the Islamic religious community, might be regarded under an understanding of the German constitution, as incompatible with the dignity of humanity: free human beings show their faces to others.

124

But the Basic Law, in the sphere of society, also respects religious and ideological views that document a relation between the sexes that is difficult to reconcile with the order of values in the Basic Law, as long as they do not overstep the limits of the state’s order of peace and law. The value system of the Basic Law, including its understanding of the equality of men and women, does not close itself to all change; it confronts challenges, reacts and preserves its identity in change.

125

This openness and tolerance does not, however, go so far as to grant entry into the civil service to symbols that challenge the existing standards of value and are therefore likely to result in conflicts. The fundamental openness and tolerance in society may not be transferred to the state’s internal relationships. On the contrary: there is a constitutional requirement to keep the internal organisation of state administration free from the obvious possibility of such severe conflicts, in order that – in the concrete case – school lessons and education at school can proceed without interruption, and in general, because the state must remain capable of acting and must be able to conduct itself with a minimum of uniformity.

IV.

126

The majority of the Senate extend the constitutional requirement of the specific enactment of a statute to an area which, because it is dependent on the individual case and because it is subject to existing constitutional obligations, is in practice not accessible to control by statute (cf. BVerfGE 105, 279 (304)).

127

1. The parliament of the Land Baden-Württemberg expressly and with good reasons refused to pass a formal statutory provision occasioned by the assessment of aptitude in the present case. In the period relevant for this litigation, the Land parliament twice dealt with the problem of teachers who wish to wear a headscarf in class (Minutes of plenary proceedings (PlenarProt.) 12/23 of 20 March 1997, pp. 1629 ff.; Minutes of plenary proceedings 12/51 of 15 July 1998, pp. 3977 ff.). The concrete case of the complainant was debated in detail in the plenary debate of 15 July 1998 (Minutes of plenary proceedings 12/51 of 15 July 1998) and a resolution was passed on a motion by the parliamentary Republikaner party; the motion was for legislation to be passed (Land parliament document, LTDrucks, 12/2931 of 9 June 1998). By a large majority, with only the votes of the Republikaner party opposing, the parliament voted not to pass legislation on the question of assessment of aptitude with regard to the wearing of religious symbols in class. The decision was stated to have been made because broader and more detailed legislation was not necessary; statutory provision would make it more difficult to make the appropriate assessment of aptitude based on the individual case and thus also to exercise the scope for interpretation in awarding public offices and at the same to do justice to personal liberties.

128

The call for a formal statute, based on the federal constitution, does not result in any advantage from the point of view of materiality for the democratic basis of an administrative decision. In complex questions of the individual assessment of applicants for a public office, a formal statute that in principle encourages freedom can have the reverse effect of reducing freedom, since in this way measures designed for the individual case are made more difficult. A general statutory provision, which in any case is foreign to the system for laying down official duties and assessing aptitude under civil-service law, does not create more justice in the individual case, but less. Under the scheme of school policy of the Land government and the Land parliament, it would certainly be possible to appoint a teacher wearing a headscarf to a teaching post in the individual case if it could be seen that she was prepared to refrain from wearing the headscarf not only in extreme situations, as submitted by the complainant in the oral hearing, but also in everyday teaching situations in a primary school.

129

The school authority, the minister and the Land parliament, however, took offence specifically at the fact that the complainant categorically refused to take a step in the direction of a more flexible approach to her attitude to the headscarf. From this, the authority responsible for assessing her aptitude was entitled to conclude that in the case of conflicts with the negative freedom of religion of parents and children, solutions adapted to the individual case at mixed-religion schools would be very much more difficult (cf. Article 15.1, Article 16 of the Constitution of the Land Baden-Württemberg). It was also entitled to conclude that the persistence of the applicant’s refusal was capable of arousing doubts as to her neutrality and moderation, although this did not appear beyond objective justification and arbitrary.

130

2. The majority of the Senate require the Land legislature to put constitutional restrictions inherent in the Basic Law into concrete terms, although they can be determined concretely enough from the Basic Law. It is therefore doubtful whether the Land legislature is even authorised to put these inherent restrictions into concrete terms, beyond making a declaration confirming them or clarifying them.

131

The Federal Constitutional Court has to pass a final and unappealable decision on the extent and scope of inherent restrictions of fundamental rights. It is not the task of a Land legislature to repeat in a declaration the restrictions that arise directly from constitutional law. Nor is the appropriate respect accorded to the Land parliament if it is forced to pass statutory wording that on the one hand it expressly and in a well-considered way did not desire and that on the other hand – in the opinion of the majority of the Senate – put direct constitutional barriers in concrete form which will again be tested in later proceedings before the Federal Constitutional Court. A competent court that in such a controversial fundamental constitutional question refers to the legislature must at least inform the legislature how the latter is to carry out the task presented to it of putting direct constitutional limits into a concrete form.

132

In the present case, however, all questions remain open as to how the legislature is to draft legislation incorporating its political will, which it has already declared openly in the Land parliament. Is it sufficient if the legislature makes it an official duty for teachers to avoid religious and ideological dress symbols that are likely to result in negative effects on the peace of the school? Would it be admissible to prohibit the use of such religious, ideological or political symbols in the teaching profession that are likely to endanger the equality of men and women and its enforcement in practice (Article 3.2 of the Basic Law)? May civil-service law for teachers be defined in such a way as the then Republikaner party group in the Land parliament demanded in its motion of 9 June 1998 (Land parliament document 12/2931), “that the wearing of the headscarf as the symbol of Islam in class represents an inadmissible, one-sided, ideological and political statement”? Must the Land legislature, because this is said by the majority of the Senate to be required by the Basic Law, carry out empirical research with regard to possible disruptions, and if so, to what extent? Or must it constitutionally and for reasons of equality prohibit without exception all religious symbols in the dress of the teachers, even if, like a small ornamental cross, they make no significant statement and therefore are from the outset unlikely to result in conflicts of values at school? Could such a prohibition of dress symbols without any objective provocative content whatsoever be justified at all?

133

3. The Senate did not do justice to the task of answering a fundamental constitutional question, although the case is ripe for a decision. As a result, the Land legislature must now pass a statute, which according to the dissenting opinion is not even necessary, and this without being granted a transitional period for this surprising necessity. In addition, it would scarcely be compatible with the principle of equality to incorporate a statutory basis for a general prohibition of significant religious or ideological symbols in office, as suggested by the majority of the Senate, only in the Education Act and not generally in the Land Civil Service Act; the relevant conflict situations may occur in other areas of the civil service too, for example in connection with the youth welfare service, social work, public safety or the administration of justice.

134

4. The majority of the Senate ought at least to have granted the legislature a transitional period. Taking into account earlier decisions of the Federal Constitutional Court on the constitutional requirement of the specific enactment of a statute, this would have been appropriate and would have reduced the effects of a surprise decision.

135

a) The Federal Constitutional Court derived the prohibition of surprise decision from the requirement of a fair hearing under Article 103.1 of the Basic Law. The parties to the proceedings may be surprised neither by a judicial decision in itself (BVerfGE 34, 1 (7-8)) nor by its factual (BVerfGE 84, 188 (190-191)) or legal (BVerfGE 86, 133 (144-145)) content. A judicial decision may be based only on facts and results of evidence to which the parties were able to respond. Merely informing the parties to the proceedings is not enough; they must also have a concrete opportunity to express a reaction to the facts (BVerfGE 59, 330 (333)). A statement relating to the circumstances and facts is regarded as satisfying the requirements of a fair hearing in the meaning of Article 103.1 of the Basic Law, and the possible to make a statement on the legal situation is deemed equivalent to this (BVerfGE 60, 175 (210); 64, 125 (134); 86, 133 (144); 98, 218 (263)). The parties must be given the possibility of asserting their point of view by way of arguments on fact and law in the proceedings. In special cases, it may here be necessary to draw the attention of the parties to a legal opinion on which the court intends to base the decision. Granting a fair hearing in a way that satisfies the constitutional right requires that the party, using the care to be expected of him or her, is capable of recognising the aspects on which the decision may depend. If the court relies on a legal point of view without prior reference, and even a conscientious and informed party to the proceedings, even taking into account the variety of legal opinions that might be held, could not expect the court to rely on this legal point of view, the result may be the equivalent of prevention of submissions on the legal situation. This applies in particular if the court’s interpretation of the law has to date not been argued either in case law or in literature, albeit in principle there is no right to a judicial dialogue or a reference to the court’s legal viewpoint (BVerfGE 86, 133 (144-145); 96, 189 (204); 98, 218 (263)).

136

The majority of the Senate fail to adequately take into account the procedural right to a fair hearing that is also due to the state as a party to the proceedings when they introduce a requirement of the specific enactment of a parliamentary statute in order to create official duties in connection with the freedom of religion and ideology of the civil servant, where until now neither case law and literature nor the complainant herself have called for such a requirement, and this was not made a serious subject of the judicial dialogue in the oral hearing before the Senate. The Land Baden-Württemberg had neither occasion nor opportunity to express its opinion on this legal opinion, which was surprising for all parties and a major factor in the decision. The Land should have been given an opportunity to express an opinion on this aspect. The majority of the Senate accuse the Land of an omission. They state that it had not created a sufficiently definite statutory basis for the encroachment upon the complainant’s right under Article 33.2 in conjunction with Article 4.1 and 4.2 of the Basic Law. The Land was unable to react to this charge, because it did not know of it nor was it obliged to know of it.

137

b) In view of this procedural omission, the majority of the Senate ought at least to have laid down a reasonable period of time for the Land legislature within which the legislature was able to take account of the requirement of the specific enactment of a statute by creating a provision that, in the opinion of the majority of the Senate, does justice to the situation under constitutional law. In earlier decisions, the Federal Constitutional Court recognised this problem and when it made a new demand for the specific enactment of a statute it made it possible for the executive for a transitional period to make a decision encroaching upon fundamental rights without a corresponding statutory provision. In this way, for example, in the interest of the prison regime and schools, the monitoring of prisoners’ letters was declared to be provisionally permissible because there was insufficient authorisation below the level of a statute (cf. BVerfGE 33, 1 (12-13); 40, 276 (283)) as was expulsion from school that was not governed by a parliamentary statute (cf. BVerfGE 58, 257 (280-281)).

138

5. A reasonable transitional period would not only have been needed by reason of respect for the legislature, but would also have taken seriously the requirement of the specific enactment of a statute that was assumed by the majority of the Senate and given the Land legislature the possibility of creating an effective statutory basis for the present case. The Federal Administrative Court is also left by the reasoning of the majority of the Senate in a state of uncertainty, in a manner that is constitutionally questionable, as to how it is to proceed in future with regard to the proceedings that have been referred back. For if – as the majority of the Senate assume – the decision challenged by the complainant is unconstitutional, then at present the Federal Administrative Court should find in favour of the plaintiff. Since the dispute related only to the question of the religious symbol, therefore, the complainant would have to be appointed a civil servant by the Land Baden-Württemberg. In this way, under civil-service law, a fait accompli would be created, which the legislature could scarcely correct. The alternative, not excluded even by individual elements of the grounds given by the majority of the Senate, of suspending the proceedings before the administrative courts until the Land parliament has created a statutory basis in the law relating to teachers who are civil servants, should have been clearly stated.

(signed)

Jentsch

Di Fabio

Mellinghoff

The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

The Basic Law requires the state to protect human life, including that of the unborn. This obligation to protect is based on Article 1, Paragraph 1 of the Basic Law; its object, and following from that, its extent are more precisely defined in Article 2, Paragraph 2. Even unborn human life is accorded human dignity. The legal system must create the statutory prerequisites for its development by granting the unborn its independent right to life. The right to life does not commence first with the mother’s acceptance of the unborn.

The obligation to protect unborn human life is related to the individual life and not human life in general.

The unborn is entitled to legal protection even vis-à-vis its mother. Such protection is only possible if the legislature fundamentally forbids the mother to terminate her pregnancy and thus imposes upon her the fundamental legal obligation to carry the child to term. The fundamental prohibition on pregnancy termination and the fundamental obligation to carry the child to term are two integrally connected elements of the protection mandated by the Basic Law.

Termination must be viewed as fundamentally wrong for the entire duration of the pregnancy and thus prohibited by law (reaffirmation of BVerfGE 39, 1 <44>). The right to life of the unborn may not be surrendered to the free, legally unbound decision of a third party, not even for a limited time, not even when the third party is the mother herself.

The extent of the obligation to protect unborn human life must be determined with a view, on the one hand, to the importance and need for protection of the legal value to be protected and, on the other hand, to competing legal values. Listed among the legal values affected by the right to life on the part of the unborn are – proceeding from the right of the pregnant woman to protection of and respect for her human dignity (Article 1, Paragraph 1 of the Basic Law) – above all, her right to life and physical inviolability (Article 2, Paragraph 2 of the Basic Law) and her right to free development of her personality (Article 2, Paragraph 1 of the Basic Law). However, the woman cannot claim constitutionally protected legal status under Article 4, Paragraph 1 of the Basic Law for the act of killing of the unborn which is involved in a pregnancy termination.

To fulfill its obligation to protect [unborn human life], the state must undertake sufficient normative and practical measures which lead – while taking the competing legal values into account – to the attainment of appropriate and, as such, effective protection (prohibition on too little protection). This necessitates a concept of protection which combines elements of preventative and repressive protection.

The woman’s constitutional rights do not extend far enough to set aside, in general, her legal obligation to carry the child to term, not even for a limited time. The constitutional positions of the woman, however, do mean that not imposing such a legal obligation in exceptional situations is permissible, in some cases, perhaps even mandatory. It is up to the legislature to determine in detail, according to the criterion of non-exactability, what constitutes an exceptional situation. “Non-exactable” means that the woman must be subject to burdens which demand such a degree of sacrifice of her own existential values that one could no longer expect her to go through with the pregnancy (reaffirmation of BVerfGE 39, 1 <48 et seq.>).

The prohibition on too little protection does not permit free disregard of the use of criminal law and the resulting protection for human life.

The state’s obligation to protect human life also encompasses protection from threats to unborn human life which arise from influences in the family or from the pregnant woman’s social circle, or from the present and foreseeable living conditions of the woman and the family, and counteract the woman’s willingness to carry the child to term.

Moreover, the state’s mandate to protect human life requires it to preserve and to revive the public’s general awareness of the unborn’s right to protection.

The Basic Law does not fundamentally prohibit the legislature from shifting to a concept for protecting unborn human life which, in the early phase of pregnancy, emphasizes counseling the pregnant woman to convince her to carry the child to term; it could thus dispense with the threat of criminal punishment based on indications and the ascertainment of grounds supporting the indications by third parties.

A counseling concept of this type requires guideline legislation which creates positive prerequisites for action on the part of the woman in favor of the unborn. The state bears full responsibility for implementation of the counseling procedure.

The state’s obligation to protect human life requires that the involvement of the physician, which is necessary in the interests of the woman, simultaneously serve to protect the unborn.

Characterization in law of the existence of a child as a source of injury is excluded on constitutional grounds (Article 1, Paragraph 1 of the Basic Law). Thus the obligation to support a child cannot be construed as an injury either.

Pregnancy terminations performed without ascertainment of the existence of an indication pursuant to the counseling regulation may not be declared to be justified (not illegal). In accordance with the inalienable principles prevalent in a state governed by the rule of law, a justifying circumstance will apply to an exceptional situation only if the existence of its conditions must be ascertained by the state.

The Basic Law does not permit the granting of a right to benefits from the statutory health insurance for the performance of a pregnancy termination whose legality has not been established. The granting of social assistance benefits in cases of economic hardship for pregnancy terminations which are not punishable by law according to the counseling regulation, on the other hand, is just as unobjectionable from a constitutional point of view as continued payment of salary or wages is.

The fundamental principle of the organizational power of the federal states applies without restriction if a federal regulation merely provides for a task of state to be fulfilled by the federal states, but does not make individual provisions that would be enforceable by government agencies or administrations.

FEDERAL CONSTITUTIONAL COURT

2 BvF 2/90
2 BvF 4/92
2 BvF 5/92

Pronounced May 28, 1993
Kling
Administrative Secretary
as Clerk of the Court

IN THE NAME OF THE PEOPLE

In the proceedings
for abstract judicial review of

1. a)

the provisions of § 218b, Section 1, Sentence 1 and Section 2 and § 219, Section 1, Sentence 1 of the Penal Code in the version of the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213) and

b)

the provisions of §§ 200f, 200g of the Reich Insurance Code in the version of the Act on Supplementary Measures in Conjunction with the Fifth Penal Reform Act (Penal Reform Act – Supplementary Act) of August 28, 1975 (Federal Law Gazette I, p. 2289)

– 2 BvF 2/90 -,

2.

Articles 13, No. 1 and 15, No. 2 of the Act to Protect Unborn/Gestating Life, Promote a Society More Hospitable Toward Children, Provide Assistance in Pregnancy Conflicts, and Regulate Pregnancy Terminations (Pregnancy and Family Assistance Act) of July 27, 1992 (Federal Law Gazette I, p. 1398) and § 24b of the Fifth Volume of the Code of Social Security Law in the version of Article 2 of the Pregnancy and Family Assistance Act

– 2 BvF 4/92 –

Petitioners under 1) and 2):
The Free State of Bavaria, represented by the minister-president, Prinzregentenstrasse 7, Munich 22,

and on the basis of the oral proceedings of December 8 and 9, 1992, finds by

JUDGMENT

that:

I. 1. § 218a, Section 1 of the Penal Code in the version of the Act to Protect Unborn/Gestating Life, Promote a Society More Hospitable Toward Children, Provide Assistance in Pregnancy Conflicts, and Regulate Pregnancy Terminations (Pregnancy and Family Assistance Act) of July 27, 1992 (Federal Law Gazette I, p. 1398) contravenes Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law inasmuch as the provision declares a pregnancy termination under the preconditions set forth in the aforementioned statute to be not illegal and, in No. 1, refers to counseling which, in turn, fails to satisfy the constitutional requirements pursuant to Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law.

The entire provision is invalid.

2. § 219 of the Penal Code in the version of the aforementioned Act contravenes Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law and is invalid.

3. In keeping with the grounds of the Judgment, § 24b of the Fifth Volume of the Code of Social Security Law conforms to Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law.

4. In keeping with the grounds of the Judgment, §§ 200f, 200g of the Reich Insurance Code in the version of the Act on Supplementary Measures in Conjunction with the Fifth Penal Reform Act (Penal Reform Act – Supplementary Act) of August 28, 1975 (Federal Law Gazette I, p. 2289) were, inasmuch as they provided for benefits from the statutory health insurance in the event of pregnancy terminations performed pursuant to §218a, Section 2, No. 3 of the Penal Code in the version of the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213), in conformity with Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law.

5. Article 15, No. 2 of the Pregnancy and Family Assistance Act contravenes Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law and is invalid, inasmuch as the aforementioned Act revokes the provision regarding federal statistics on pregnancy termination previously included in Article 4 of the Fifth Penal Reform Act of June 18, 1974 (Federal Law Gazette I, p. 1297), as amended by Articles 3 and 4 of the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213).

6. Article 4 of the Fifth Penal Reform Act in the version of Article 15, No. 2 of the Pregnancy and Family Assistance Act contravenes the federal principle (Article 20, Paragraph 1 and Article 28, Paragraph 1 of the Basic Law) and is invalid, inasmuch as the provision places obligations on the highest competent state authorities; for the rest, it conforms to the Basic Law.

7. The petitions in Case No. 2 BvF 2/90 for constitutional review of § 218b, Section 1, Sentence 1 and Section 2 and § 219, Section 1, Sentence 1 of the Penal Code in the version of the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213) are hereby dismissed.

1. The provisions, which have been in force since the Judgment of August 4, 1992, shall remain in force until June 15, 1993. From then on until new statutory provisions take effect, nos. 2 through 9 hereof shall apply by way of supplementation to the provisions of the Pregnancy and Family Assistance Act, to the extent that the provisions of the said Act have not been declared invalid by No. I of this Judgment.

2. § 218 of the Penal Code in the version of the Pregnancy and Family Assistance Act is not applicable if the pregnancy termination is performed by a physician within twelve weeks from conception, the woman demands the termination and proves to the physician by production of a certificate that she has received counseling from a licensed counseling center at least three days prior to the medical procedure (cf. infra No. 4). The fundamental prohibition on pregnancy termination remains unaffected even in these cases.

3. (1) Counseling serves to protect unborn life. It has to be guided by the effort to encourage the woman to continue the pregnancy and open up perspectives to her for a life with the child; it should help her make a responsible and conscientious decision. In the process, the woman must be aware of the fact that, in every stage of pregnancy, the unborn has an independent right to life even vis-à-vis her, and thus, according to the legal system, pregnancy termination can only be considered in exceptional situations where bearing the child to term would place the woman under a burden which – comparable to the circumstances specified in § 218a, Section 2 and 3 of the Penal Code in the version of the Pregnancy and Family Assistance Act – is so severe and exceptional that it exceeds the limits of exactable sacrifice.

(2) Counseling offers the pregnant woman advice and assistance. It contributes to the surmounting of conflict situations in connection with the pregnancy and the overcoming of an emergency. To this end, counseling encompasses:

a) entering into conflict counseling; to this end, it is expected that the pregnant woman shall inform the counselor of the circumstances that have led her to consider a pregnancy termination;

b) provision of whatever medical, social, and legal information is warranted by the facts and circumstances of the case, presentation of the legal rights of mother and child and the available practical assistance, in particular, assistance which facilitates continuation of the pregnancy and eases the situation of mother and child;

c) the offer to assist the woman in asserting legal rights, finding housing and childcare, and continuing her training/education, as well as follow-up counseling.

Counseling shall also include information on ways of avoiding unwanted pregnancy.

(3) If necessary, medical, psychological, or legal experts or other persons shall be included in counseling. In every instance, it should be ascertained whether it is advisable, with the consent of the pregnant woman, to inform third parties, in particular the father of the unborn and the immediate relatives of both parents of the unborn.

(4) If she so chooses, the pregnant woman may remain anonymous vis-à-vis the counselor.

(5) The counseling session shall be continued at once if, according to the content of the counseling session, it serves the goal of counseling (Paragraph 1 <Sentence 1>). If the counselor holds that the counseling session has reached its conclusion, the counseling center shall, upon request, issue a certificate to the woman, under her name and bearing the date of the last counseling session, which certifies that counseling took place according to Paragraphs 1 through 4.

(6) The counselor shall protocol, in a way which does not permit tracing of the identity of the woman counseled, her age, marital status, and nationality, the number of times she has been pregnant, how many children she has, and how many previous pregnancy terminations she has undergone. Furthermore, the counselor shall record the essential grounds stated for the pregnancy termination, the duration of the counseling session, and, if applicable, the additional persons present. The protocol must also show what information was conveyed and what assistance was offered to the woman.

4. (1) Counseling centers pursuant to No. 3 supra must – regardless of licensing pursuant to § 3, Section 1 of the Pregnancy and Family Assistance Act – be licensed separately by the state. Privately funded institutions and physicians can also be licensed as counseling centers.

(2) Counseling centers shall not be so organizationally or economically connected with institutions in which pregnancy terminations are performed that a material interest in the performance of terminations cannot be excluded on the part of the counseling center. The physician who performs the termination is excluded as a counselor, nor may he be affiliated with the counseling center that conducted the counseling.

(3) Only those counseling centers can be licensed which guarantee counseling in accordance with No. 3 supra, have sufficient numbers of personally and professionally qualified personnel to conduct such counseling, and cooperate with all centers that provide public and private assistance to mother and child. The counseling centers are required to render an annual written account of the standards on which their counseling work is based and the experience they have gained in the process.

(4) Licenses may only be granted under the proviso that they must be confirmed by the responsible authority within a period to be determined by law.

(5) The federal states shall provide a sufficient number of counseling centers near the women’s places of residence.

5. The physician from whom the woman demands a pregnancy termination is subject to the duties arising from the grounds of the Judgment (cf. Nos. 1. and 2. supra).

6. The licensing procedure provided for in No. 4 shall also be conducted for existing counseling centers. Until completion of this procedure, at the latest until December 31, 1994, these centers are empowered to conduct counseling pursuant to No. 3 supra.

7. The obligation to maintain federal statistics and the obligation to report pursuant to Article 4 of the Fifth Penal Reform Act of June 18, 1974 (Federal Law Gazette I, p. 1297), as amended by Articles 3 and 4 of the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213) also apply in the territory specified in Article 3 of the Unification Treaty.

8. The provisions of § 37a of the Federal Social Security Act also apply in the event of pregnancy terminations performed in accordance with No. 2 supra.

9. Until the legislature reaches a decision as to the possible introduction and means of ascertaining a criminological indication, women insured with the statutory health insurance and those eligible for benefits pursuant to the regulations on public assistance can draw benefits upon application if the preconditions of No. 2 supra are fulfilled and the responsible public medical examiner or a medical referee of the statutory health insurance has certified that, in his opinion as a physician, the pregnant women is the victim of a crime pursuant to §§ 176 – 179 of the Penal Code and there are compelling grounds for believing that the pregnancy is due to this crime. The physician is authorized to obtain, with the consent of the woman, information from the department of public prosecution and inspect any pertinent investigative records; any knowledge gained in this manner is subject to physician-patient privilege.

Grounds:

A.

1

At issue in these joint proceedings for abstract judicial review is above all whether various penal, social security, and organizational provisions on pregnancy termination satisfy the state’s constitutional duty to protect unborn human life. The provisions in question are part of the new laws in the Fifteenth Penal Law Amendment Act and in the Penal Reform Act – Supplementary Act brought about by the German Federal Constitutional Court’s Judgment of February 25, 1975 (BVerfGE 39, 1 et seq.) or are part of the Pregnancy and Family Assistance Act that was newly enacted for the whole of Germany following the reunification of Germany.

I.

2

1. The issue of whether and in what way, in the field of tension between protection of unborn human life and a pregnant woman’s right of self-determination, the problem of pregnancy termination can be resolved in a more satisfactory manner than through penal measures has been the subject of controversial discussion for many years. A 1974 attempt on the part of the legislature to originally limit the general criminal liability for pregnancy termination, mainly through a time-phase solution for the first twelve weeks of pregnancy, was rejected by the Federal Constitutional Court. In its Judgment of February 25, 1975 (BVerfGE 391 et seq.), the First Senate of the Court declared that § 218a of the Penal Code in the version of the Fifth Penal Reform Act of June 18, 1974 (Federal Law Gazette I, p. 1297) is inconsistent with Article 2, Paragraph 2, Sentence 1 in conjunction with Article 1, Paragraph 1 of the Basic Law and is invalid, inasmuch as it exempts pregnancy termination from punishment even if there are no grounds that – in the sense of the grounds for the Judgment – are of lasting duration in the face of the order of values of the Basic Law.

3

2. Thereupon, the German Federal Parliament enacted the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213); this amended the provisions of §§ 218 et seq. of the Penal Code (hereinafter referred to as §§ 218 et seq. Penal Code, old version) to their currently valid form, which is based on the promulgation of the Penal Code in the version of March 10, 1987 (Federal Law Gazette I, p. 945, 1160).

4

Pursuant to this Act, anyone who [has or performs] a pregnancy termination after conclusion of nistation is, as a matter of principle, subject to punishment (§ 218, Article 1, Section 3, Sentence 1, § 219d of the Penal Code, old version). A pregnancy termination within certain periods of time, however, is not punishable if it is performed by a physician, if the pregnant woman consents, and if, according to medical knowledge (taking into consideration certain severe emergencies of the pregnant woman) it is indicated (indications for pregnancy termination). The relevant provision reads as follows:

5

“§ 218a

6

Indication for Pregnancy Termination

7

(1) A pregnancy termination performed by a physician is not punishable pursuant to § 218 if:

8

1. the pregnant woman consents and

9

2. according to medical knowledge and considering the present and future situation in life of the pregnant woman, the pregnancy termination is indicated to avert a threat to the life of the pregnant woman or the threat of grave physical or mental distress on the part of the woman, and the threat cannot be averted in another way which is exactable from her.

10

(2) The preconditions of Section 1, No. 2 are also considered to have been fulfilled if, according to medical knowledge

11

1. there are compelling grounds for assuming that, due to heredity or detrimental influences, the child will suffer from irreversible injury to his or her health so grave that a continuation of the pregnancy cannot be exacted of the pregnant woman,

12

2. the pregnant woman was the victim of an illegal act pursuant to §§ 176 – 179 and there are compelling grounds to assume that the pregnancy was caused by the illegal act, or

13

3. the pregnancy termination is otherwise indicated to avert the threat of an emergency which

14

a) is so severe that a continuation of the pregnancy cannot be exacted of the pregnant woman and

15

b) cannot be averted in another way that can be exacted of the pregnant woman.

16

(3) In the cases in Section 2, No. 1, not more than twenty-two (22) weeks may have elapsed since conception, in the cases in Section 2, Nos. 2 and 3, not more than twelve (12) weeks.”

17

Furthermore, the pregnant woman is not subject to punishment even in the absence of an indication if a physician performs the pregnancy termination within twenty-two (22) weeks after conception following counseling pursuant to § 218b of the Penal Code, old version (§ 218, Section 3, Sentence 2 of the Penal Code, old version). Even if these preconditions are not met, the court can refrain from punishing the woman if she was especially distressed at the time of the procedure (§ 218, Section 3, Sentence 3 of the Penal Code, old version). In these cases, only the physician consulted by the woman is affected by the punishment. Physicians are subject to stricter standards in general as well: anyone who terminates a pregnancy although the woman has not been informed by a counselor at least three days in advance about the private and public assistance available (cf. § 218b, Section 2 of the Penal Code, old version) and has not received counseling from a physician about the medically relevant aspects is punishable, even if the pregnancy termination is indicated, for performing a termination without prior counseling of the pregnant woman (§ 218b, Section 1 of the Penal Code, old version). Furthermore, even if the pregnancy termination is indicated, anyone who performs a termination without written certification by another physician that the termination is indicated is also punishable (§ 219 of the Penal Code, old version). The counseling of the pregnant woman about social assistance and the counseling about the medically relevant aspects may also be conducted by the physician who certifies that the pregnancy termination is indicated; the consultation about the medically relevant aspects can also be conducted by the physician who performs the termination procedure. The pregnant woman is not punishable pursuant to §§ 218b, 219 of the Penal Code, old version.

18

3. The objective of the Act on Supplementary Measures in Conjunction with the Fifth Penal Reform Act (Penal Reform Act – Supplementary Act) of August 28, 1975 (Federal Law Gazette I, p. 2289) is to bolster the reformative efforts of the Fifth Penal Reform Act through supporting social policy measures (cf. German Federal Parliament Publication 7/376, p. 1).

19

It is based on a draft bill by the Social Democratic and Free Democratic parliamentary groups (German Federal Parliament Publication 7/376) that takes up a draft bill introduced by the Federal Government in 1972 (German Federal Council Publication 104/72). Among other things, the draft provides that insured women have a right to benefits from the statutory health insurance in the event of a pregnancy termination performed by a physician.

20

According to the legislative history of the bill, the draft should supplement the reformative efforts of § 218 of the Penal Code, which takes too little account of the emergencies in which a pregnant woman may find herself and thus fails to do justice to the problem of illegal pregnancy terminations. The measures provided for were also intended to prevent illegal pregnancy terminations; moreover, they were intended to ensure that, “in cases where the law guarantees exemption from punishment”, pregnant women would not be placed at a disadvantage because of their financial situations. The legislative history goes on to state (German Federal Parliament Publication loc. cit. p. 5 et seq.):

21

“Counseling and treatment in the event of a pregnancy termination are covered by benefits of the statutory health insurance because in this way it is possible to ensure that the termination procedure is performed properly.
Performance of these tasks is also in the general public interest. Thus the group of health insurance policy holders should not bear the costs alone. For this reason, provision has been made for partial federal funding.”

22

Upon the recommendation of the Committee on Labor and Social Order, the German Federal Parliament enacted the draft with a few amendments (German Federal Parliament Publication, 7th Legislative Period, 88th Session, March 21, 1974, shorthand verbatim record of session, p. 5763 et seq.). These consisted mainly in the extension of health insurance benefits and social assistance to also include non-punishable sterilization by a physician and in the express allowance of the right to sickness benefits and continued payment of wages in the event of incapacity for work due to sterilization or pregnancy termination, which was controversial during debates (cf. German Federal Parliament Publication 7/1753, pp. 5 – 11). After the Federal Council refused to approve the bill, the mediation committee suggested a version of the Act which was intended to ensure that, following new statutory provisions on the criminal liability for pregnancy termination in the wake of the Federal Constitutional Court’s Judgment of February 25, 1975, benefits would be granted only in all cases considered by the legislature to be cases of “non-illegal” pregnancy termination by a physician (German Federal Parliament Publication 7/3778, p. 2 et seq.). This version was enacted.

23

The pertinent provisions of the Act read as follows:

24

“IIIa. Other Assistance

25

§200e

26

Insured persons have a right to medical advice on contraceptive issues; medical advice also includes any necessary examination and the prescription of contraceptives.

27

§ 200f

28

Insured persons have a right to benefits in the event of non-illegal sterilization and in the event of non-illegal pregnancy termination performed by a physician. Benefits shall cover medical advice on the continuation and termination of pregnancy, medical examination and appraisal to ascertain the preconditions for non-illegal sterilization or non-illegal pregnancy termination, medical treatment, the supply of pharmaceuticals, dressings, medicaments, and hospitalization. Insured persons have a right to sickness benefits if they are incapable of work due to a non-illegal sterilization or non-illegal pregnancy termination performed by a physician, unless they are entitled to benefits pursuant to § 182, Section 1, No. 2.

29

§ 200g

30

The provisions governing assistance during sickness apply accordingly for the granting of benefits pursuant to § 200e and § 200f unless otherwise stipulated. § 192, Section 1 does not apply to the granting of sickness benefits in the event of non-illegal sterilization and in the event of non-illegal pregnancy termination performed by a physician.

31

4. The indications solution, especially the statutory definition of the general emergency indication, and health insurance funding of pregnancy terminations remained the subject of intense legal and political debate even afterwards. In March 1990, the State of Bavaria petitioned the German Federal Constitutional Court for abstract judicial review of the provisions on the consultation and indication ascertainment procedure and health insurance benefits in the event of pregnancy terminations on the basis of the general emergency indication; this petition (2 BvF 2/90) is the subject of the present Judgment.

II.

32

The reunification of Germany on October 3, 1990 and the related task of standardizing legislation in both parts of a reunited Germany lent new impetus to efforts at reform.

33

1. At first laws on criminal liability for pregnancy termination still differed in the two parts of Germany. On the basis of the Unification Treaty of August 31, 1990 in conjunction with the Act on the Unification Treaty of September 23, 1990 (Federal Law Gazette II, p. 885; cf. Appendix II, Chapter III, Subject Area C, Section I, No. 1), criminal liability in the acceding territory extends, pursuant to § 153 of the GDR Penal Code of January 12, 1968 in the new version of December 14, 1988 (GDR Law Gazette I 1989, p. 33), amended by the Sixth Penal Revision Act of June 29, 1990 (GDR Law Gazette I, p. 526), to anyone who interrupts the pregnancy of a woman “contrary to the statutory provisions”. Likewise, anyone who prompts a woman to terminate her pregnancy or supports her in interrupting a pregnancy herself or having an illegal termination performed is also punishable. The provisions of the Pregnancy Termination Act of March 9, 1972 (GDR Law Gazette I, p. 89) and the related implementing regulations of the same date (GDR Law Gazette II, p. 149) that continue in force pursuant to the Unification Treaty (loc. cit., Appendix II, Chapter III, Subject Area C, Section I, Nos. 4 and 5) contain a time-phase solution. Pursuant to § 1, Section 2 of the Act, the pregnant woman has the right to have a medical pregnancy termination in an obstetric / gynecological institution within twelve weeks from the beginning of the pregnancy. Pursuant to § 2, a pregnancy termination may be performed at a later point in time only if it is to be expected that continuation of the pregnancy will endanger the life of the woman or if there are other grave reasons; the decision as to whether this is the case shall be made by an expert medical commission. Pursuant to § 3, pregnancy termination is fundamentally prohibited in cases where it may lead to gravely injurious or life-threatening complications (Section 1) or if less than six (6) months have elapsed since the last pregnancy termination (Section 2). § 4, Section 1 states that the preparation, performance, and subsequent treatment of the legal pregnancy termination is a case of sickness for the purposes of labor and insurance laws.

34

2. Article 31, Paragraph 4 of the Unification Treaty of August 31, 1990 calls for the legislature of the reunified Germany to enact, at the latest by December 31, 1992, laws that ensure protection of gestating life and constitutionally valid surmounting of the conflict situations of pregnant women better than is currently the case in both parts of Germany.

35

a) Thus in 1991, the Free Democratic Party parliamentary group (German Federal Parliament Publication 12/551), the Members of Parliament Christian Schenck, et al., and the group Bündnis 90/Die Grünen (German Federal Parliament Publication 12/696), the Social Democratic Party parliamentary group (German Federal Parliament Publication 12/841), the Members of Parliament Petra Bläss, et al., and the group Party of Democratic Socialism / Linke Liste (German Federal Parliament Publication 12/898), the Christian Democratic Union / Christian Social Union parliamentary group (German Federal Parliament Publication 12/1178 <new>) and the Members of the Parliament Herbert Werner, et al. (German Federal Parliament Publication 12/1179) introduced draft bills on the subject of new, uniform laws on pregnancy termination for all of Germany.

36

During parliamentary deliberation, the above were joined by a draft bill by Members of Parliament Inge Wettig-Danielmeier, Uta Würfel, et al. (German Federal Parliament Publication 12/2605, superseded by German Federal Parliament Publication 12/2605 <new>). The crucial point of the penal law portion of this bill, which was later enacted with amendments, is a fundamental transformation of § 218 of the Penal Code as well as a revised counseling regulation (§ 219 of the Penal Code). According to this, pregnancy terminations performed by a physician within twelve weeks after conception and with the consent of the pregnant woman shall no longer be included in the statutory definition of crime found in § 218 of the Penal Code, as long as the woman has received counseling at a licensed counseling center at least three (3) days prior to the procedure. The previous statutory definitions of the criminological indication and the general emergency indication are to be abolished, leaving only medical and embryopathic indications as grounds of justification for pregnancy termination.

37

The legislative history of the statute emphasizes that, in light of the significance of the gestating life as a legal value and the constitutional guarantee of it, penal protection is indispensable. Experiences with the indications solution introduced in 1976, however, had shown that it was impossible to standardize sufficiently concrete, medically and judicially verifiable criteria for ascertaining the presence of an emergency which would justify pregnancy termination. In the end, observed the lawmakers, only the pregnant woman herself could assess the conflict situation in which she finds herself. Thus it was necessary to find a solution that would take both the high value of unborn life and the self-determination of the woman into account. The Federal Constitutional Court did not declare all indications solutions to be constitutionally invalid in its Judgment of February 25, 1975. The degree to which the Penal Code must be used to protect unborn life depends on whether other provisions exist through which effective protection of gestating life really is guaranteed. The precondition for constitutionally valid embodiment of the amendments of the Penal Code provided for in the draft bill was, on the one hand, that the state provide sufficient sociopolitical means to protect unborn life in this way. The suggested sociopolitical measures served to meet this requirement. On the other hand, steps must be taken to ensure that the woman does not make her responsible decision of conscience regarding a pregnancy termination in isolation from the fundamental decision for the protection of the gestating life that is prescribed by the Basic Law. This would be ensured procedurally through the compulsory counseling, by means of which the woman would be offered advice and assistance in her conflict as well as sufficient information about governmental assistance as the basis for thorough reflection on her situation. In doing this, it was thought that preparedness to decide in favor of gestating life is greatest when the woman does not have the feeling that she must subjugate herself to the verdict of others, but rather is able, after receiving qualified counseling and carefully considering the situation, to decide for herself whether to continue the pregnancy. The woman’s freedom of choice does not leave the gestating life entirely without protection. In this way, there is a chance that the woman – without being patronized in the counseling session – would accept the assistance offered to her in her conflict situation and decide in favor of the child. Because the responsible contact between the pregnant woman and the counselor that is necessary for a counseling session of this kind cannot be forced, no onus to present her case and no obligation to justify her actions would be imposed on the woman. At her request, however, she would receive individual suggested solutions for surmounting her conflict situation. Counseling should establish a trusting relationship between the counselor and the pregnant woman, so that the pregnant woman would be open to considering other solutions to the conflict besides pregnancy termination.

38

Furthermore, the draft bill adopts the provisions of the Reich Insurance Code on health insurance benefits in the event of pregnancy termination as §§ 24a, 24b in the Fifth Volume of the Code of Social Security Law. In this regard, the legislative history states (cf. German Federal Parliament Publication 12/2605 <new>, p. 20):

39

“§ 24b corresponds essentially to the previous § 200 f of the Reich Insurance Code. … This also covers pregnancy terminations that are performed, following counseling, within the first twelve (12) weeks after conception, because Article 11 excludes pregnancy termination from the statutory definition of a crime in § 218, Section 5 of the Penal Code. Thus it has been ensured that the present legal situation will not change with regard to the defraying of costs and expenses.”

40

The amendment of Article 4 of the Fifth Penal Reform Act (cessation of federal record keeping on pregnancy terminations, provision for a comprehensive network of pregnancy termination institutions) that is likewise contained in the draft bill is justified as follows (German Federal Parliament Publication 12/2605 <new>, p. 23):

41

“The previous Article 4 is superfluous. The new Article 4 requires the states to provide sufficient pregnancy termination facilities. This applies for both outpatient and in-patient facilities. This ensures that there will be no wholesale refusal to license outpatient pregnancy termination facilities.”

42

b) The Special Committee on “Protection of Unborn Life” deliberated the first six draft bills in seventeen sessions, devoting three sessions to debating the draft bill in the German Federal Parliament Publication 12/2605 (revised).

43

On November 13 – 15, 1991 and on December 4 and 6, 1991, the committee held public hearings on the issues of counseling, prevention, and sex education and concerning the constitutional, penal, and medical law issues (cf. “Zur Sache, Themen parlementarischer Beratung”, published by the German Federal Parliament, Volume 1/92, pp. 9 -1027).

44

In revising the draft bills, the committee broke with general legislative practice. In view of the fact that the draft bills contained contradictory provisions in decisive points, the individual issues were deliberated jointly, but the decision about them and thus about any amendments and the final version of the respective draft bills was left to each bill’s proponents and sponsors represented on the committee. No final vote was held on the individual bills. The committee came to a unanimous agreement that the decision about future regulation of issues in connection with unwanted pregnancy should be made by all of the members of the German Federal Parliament without a specific bill being put forward by the committee. This, so the committee, was to be understood as a recommendation; in the second reading, the German Federal Parliament should deal with the bills in the versions in which they returned from committee and vote on these (cf. Recommendation and Report of the Special Committee on “Protection of Unborn Life”, German Federal Parliament Publication 12/2875, p. 111).

45

c) In the roll-call vote during the second reading in the German Federal Parliament, the bill sponsored by Members of Parliament Inge Wettig-Danielmeier, Uta Würfel, et al. (German Federal Parliament Publication 12/2605 <new>) in the committee’s version (cf. in this regard the Recommendation and Report of the Special Committee on “Protection of Unborn Human Life”, German Federal Parliament Publication 12/2875, pp. 85 et seq., especially 99 et seq.) received the majority of the votes (German Federal Parliament Publication, 12th Legislative Period, 99th Session, June 25, 1992, shorthand verbatim record of session, p. 8374). In the final roll-call vote on this bill in the third reading, 357 of the 657 members voted “Yea” and 284 voted “Nay”. Sixteen members abstained (German Federal Parliament, 12th Legislative Period, 99th Session, June 25, 1992, shorthand verbatim record of session, p. 8377).

46

The Federal Council approved the enactment of the German Federal Parliament pursuant to Article 84, Paragraph 1 of the Basic Law against the vote of the State of Bavaria, with the State of Baden-Württemberg, the State of Mecklenburg-Vorpommern, and the State of Thuringia abstaining (Federal Council, 645th Session, July 10, 1992, shorthand verbatim record of session, p. 375). Furthermore, the Federal Council adopted a resolution introduced by the State of Hesse (cf. German Federal Council Publication 451/3/92), which called for the costs and expenses of the accompanying social measures to be distributed appropriately among all levels, especially by increasing, at the expense of the Federal Government, the share of the value added tax distributed to the states.

47

3. The essential provisions of this Act of July 27, 1992 (Federal Law Gazette I, p. 1398), which is entitled “Act to Protect Unborn/Gestating Life, Promote a Society More Hospitable Toward Children, Provide Assistance in Pregnancy Conflicts, and Regulate Pregnancy Termination (Pregnancy and Family Assistance Act) ” – hereinafter referred to as “Pregnancy and Family Assistance Act” – are as follows:

48

a) Article 1 of the Pregnancy and Family Assistance Act (“Act on Sex Education, Contraception, Family Planning, and Counseling”) requires the Federal Center for Health Education to create concepts and prepare materials for sex education (§ 1) and creates a legal right to counseling (§ 2) through licensed counseling centers (§ 3). The information that the state is required to provide under this Act includes sex education, information about contraception and family planning, benefits for promoting families and assistance to children and families, social and economic assistance for pregnant women, pregnancy termination methods and the related risks as well as possible solutions for psycho-social conflicts in connection with pregnancy. Moreover, the pregnant woman is to be supported in asserting legal rights and obtaining housing, finding childcare for the child, and continuing her education or training. The federal states must ensure that the counseling centers provide at least one (1) counselor for every 40,000 inhabitants. The counseling centers have a right to appropriate public funding of personnel and materials costs (§ 4).

49

§§ 24a, 24b of the Fifth Volume of the Code of Social Security Law newly introduced by Article 2 of the Act replace the previous §§ 200e, 200f, and 200g of the Reich Insurance Code. Pursuant to § 24a of the Fifth Volume of the Code of Social Security Law, insured persons have a right to medical advice about contraceptive issues; moreover, insured persons of up to 20 years of age have a right to be supplied with contraceptives if they are prescribed by a physician. In § 24b of the Fifth Volume of the Code of Social Security Law, insured persons are guaranteed a right to benefits in the event of non-illegal pregnancy termination performed by a physician, if the pregnancy termination is performed in one of the institutions provided for this purpose. This provision reads:

50

“§ 24b

51

Pregnancy Termination and Sterilization

52

(1) Insured persons have a right to benefits in the event of non-illegal sterilization and in the event of non-illegal pregnancy termination performed by a physician. The right to benefits in the event of a non-illegal pregnancy termination exists only if the pregnancy termination is performed in a hospital or in another institution provided for this purpose within the meaning of Article 3, Section 1, Sentence 1 of the Fifth Penal Reform Act.

53

(2) Benefits shall cover medical advice on the continuation and termination of pregnancy, medical examination and appraisal to ascertain the preconditions for non-illegal sterilization or non-illegal pregnancy termination, medical treatment, the supply of pharmaceuticals, dressings, medicaments, and hospitalization. Insured persons have a right to sickness benefits if they are incapable of work due to non-illegal sterilization or non-illegal pregnancy termination, unless they are entitled to benefits pursuant to § 44, Section 1.”

54

The Child and Youth Welfare Act was expanded (Article 5 of the Pregnancy and Family Assistance Act) so that a child who has reached the age of three years has a right to attend a kindergarten “subject to the laws of the respective federal state”; effective January 1, 1996, this right exists without restriction. Moreover, from this point in time on, places in daycare centers and daycare openings shall be reserved for children under the age of three and school-age children as needed. The approved amendments of the Act on Federal Public Assistance (Article 8 of the Pregnancy and Family Assistance Act) concern improvements in the recognition of the increased need of expectant mothers and single parents as well as an extension of the prohibition on recourse for maintenance claims against immediate relatives of a woman receiving assistance who is pregnant or who cares for her natural child until it attains the age of six. Further amendments in the area of social assistance affect, among other things, the Employment Promotion Act (Article 6 of the Pregnancy and Family Assistance Act, the Vocational Training Act (Article 7 of the Pregnancy and Family Assistance Act), the Second Residential Construction Act (Article 9 of the Pregnancy and Family Assistance Act), the Controlled Tenancies Act (Article 10 of the Pregnancy and Family Assistance Act), and the Housing Utilization Act (Article 11 of the Pregnancy and Family Assistance Act).

55

b) Article 13, No. 1 of the Act replaces §§ 218 – 219d of the Penal Code in the version promulgated on March 10, 1987 (Federal Law Gazette I, pp. 945, 1160) with new §§ 218 through 219b (hereinafter referred to as §§ 218 et seq. of the Penal Code, new version), the relevant provisions of which read as follows:

56

“§218

57

Pregnancy Termination

58

(1) Whosoever terminates a pregnancy shall be punished with imprisonment of up to three (3) years or a fine. Acts of which the effects occur before completion of the nistation of the fertilized egg in the uterus are not considered to be pregnancy terminations within the meaning of this Code.

59

(2) In aggravated cases, the punishment shall be imprisonment of six (6) months to five (5) years. An aggravated case is generally present when the perpetrator:

60

1. acts against the will of the pregnant woman or

61

2. recklessly endangers the woman’s life or causes grave injury to the health of the pregnant woman.

62

(3) If the pregnant woman commits the offense, then the punishment shall be imprisonment of up to one year or a fine.

63

(4) The attempt to commit the crime is punishable. The pregnant woman shall not be punished for attempted pregnancy termination.

64

§ 218a

65

Exemption of Pregnancy Termination from Punishment

66

(1) Pregnancy termination is not illegal if:

67

1. the pregnant woman demands the pregnancy termination and proves to the physician by means of a certificate pursuant to § 219, Section 3 , Sentence 2 that she has received counseling at least three (3) days prior to the procedure (counseling of the pregnant woman in an emergency and conflict situation),

68

2. the pregnancy termination procedure is performed by a physician and
3. not more than twelve weeks have elapsed since conception.

69

(2) A pregnancy termination performed by a physician with the consent of the pregnant woman is not illegal if, according to medical knowledge, the pregnancy termination is necessary to avert a threat to the life of the pregnant woman or the threat of grave physical or mental distress on the part of the woman, inasmuch as this threat cannot be averted in another way which can be exacted of the woman.

70

(3) The preconditions of Section 2 are also considered to have been fulfilled if, according to medical knowledge, there are compelling grounds for assuming that, due to heredity or detrimental influences, the child would suffer from irreversible injury to his or her health so grave that a continuation of the pregnancy cannot be exacted of the woman. This applies only if the pregnant woman has proved to the physician by means of a certificate pursuant to § 219, Section 3, Sentence 2 that she has received counseling at least three (3) days prior to the procedure, and if not more than twenty two (22) weeks have elapsed since conception.

71

(4) The pregnant woman shall not be punishable pursuant to § 218 if the pregnancy termination is performed by a physician after counseling (§ 219) and not more than twenty-two (22) weeks have elapsed since conception. The court can refrain from imposing punishment pursuant to § 218 if the pregnant woman was in an especially distressed situation at the time of the pregnancy termination.

(1) Whosoever terminates a pregnancy under the circumstances described in § 218a, Section 2 or 3 without written certification from a physician (other than the physician performing the pregnancy termination) as to whether the preconditions of § 218a, Section 2 or 3, Sentence 1 have been fulfilled shall be punished by imprisonment of up to one (1) year or a fine, unless the offense is punishable pursuant to § 218. A physician who, against his better judgment, provides a false certification for submission pursuant to Sentence 1 that the preconditions of § 218a, Section 2 or 3, Sentence 1 have been fulfilled shall be punished with imprisonment of up to two (2) years or a fine, unless the offense is punishable pursuant to § 218. The pregnant woman is not punishable pursuant to Sentence 1 or 2.

75

(2) A physician may not issue certificates pursuant to § 218a, Section 2 or 3, Sentence 1 if he has been forbidden to do so by the responsible authority because there is a binding conviction against him for an offense pursuant to Section 1, §§ 218, 219a or 219b, or due to another illegal act that he has committed in connection with a pregnancy termination. The responsible authority can temporarily forbid a physician to issue certificates pursuant to § 218a, Section 2 and 3, Sentence 1 if main proceedings have been opened against him on suspicion of one of the illegal acts described in Sentence 1.

76

§ 219

77

Counseling of the Pregnant Woman in an Emergency and Conflict Situation

78

(1) Counseling serves to protect life through advice and assistance for the pregnant woman while acknowledging the high value of gestating life and the woman’s own responsibility. Counseling shall contribute to the surmounting of the emergency and conflict situation in connection with the pregnancy. It shall enable the pregnant woman to make her own responsible decision of conscience. The task of counseling is to provide comprehensive medical, social, and legal information to the pregnant woman. Counseling encompasses the presentation of the legal rights of mother and child and the practical assistance available, in particular those forms of assistance which make it easier to continue the pregnancy and improve the situation of both mother and child. Counseling shall also contribute to the avoidance of unwanted pregnancy in the future.

79

(2) Counseling must be provided by a counseling center licensed by law. The physician who performs the pregnancy termination cannot act as the counselor.

(3) No records are to be kept of the counseling session, which shall be conducted anonymously at the request of the pregnant woman. The counseling center shall immediately issue a dated certificate verifying that counseling did take place pursuant to Section 1 and that the woman has thus obtained the information for making her decision.”

81

Article 14 of the Pregnancy and Family Assistance Act amends some provisions of the Code of Criminal Procedure and, in particular, expands § 108 of the Code of Criminal Procedure, which affects the seizure of so-called chance discoveries, by the inclusion of a prohibition of exploitation: objects found on the premises of a physician which are related to a patient’s pregnancy termination cannot be used in criminal proceedings against the patient for an offense pursuant to § 218 of the Penal Code.

82

c) Two further amendments in Article 15 of the Pregnancy and Family Assistance Act affect the Fifth Penal Reform Act of June 18, 1974 (Federal Law Gazette I, p. 1297): the new version of Article 3, Section 1 replaces – in any case, with regard to the wording – the necessity for an official license for non-hospital pregnancy termination facilities introduced by Article 3, Section 1 of the Fifteenth Penal Law Amendment Act (Sentence 1), and specifies that the pregnancy termination should be performed at the earliest possible point in time (Sentence 2). Article 4 of the new version now concerns pregnancy termination facilities and thus dispenses with the requirement to keep federal statistics stated in the old Article 4. The provision reads:

83

“Article 4

84

Pregnancy Termination Facilities

85

The highest competent state authority shall ensure sufficient and geographically continuous availability of both outpatient and in-patient pregnancy termination facilities.”

86

The prior version read as follows:

87

“Article 4

88

Federal Statistics

89

The Federal Bureau of Statistics shall keep federal statistics on the number of pregnancy terminations performed pursuant to the requirements of § 218a of the Penal Code. Any physician who has performed a pregnancy termination of such kind shall file a report with the Federal Bureau of Statistics by the end of the respective current quarter, stating:
1. the grounds for the pregnancy termination,

90

2. the marital status and age of the pregnant woman as well as the number of children under her care,

91

3. the number of previous pregnancies and the outcomes of these pregnancies,

92

4. the duration of the pregnancy terminated,

93

5. the type of procedure performed and any complications observed,

94

6. the place in which the procedure was performed and, in the event of hospitalization, the length of stay, and,

95

7. where applicable, the foreign country in which the pregnant woman has her place of residence or habitual abode.

96

The physician shall not divulge the name of the pregnant woman.”

97

Finally, Article 16 of the Pregnancy and Family Assistance Act revokes the provisions of the laws of the GDR that are still in force on the basis of the Unification Treaty.

III.

98

By Judgment of August 4, 1992 and on the basis of petitions filed by the State of Bavaria and 248 members of the German Federal Parliament, the Federal Constitutional Court temporarily enjoined, pursuant to (among others) § 32 of the Federal Constitutional Court Act, the coming into force of Article 13, No. 1 and Article 16 of the Law on Assistance to Pregnant Women and Families of July 27, 1992 (Federal Law Gazette I, p. 1398) and ruled that the provisions of Article 4 (federal statistics) of the Fifth Penal Reform Act of June 18, 1974 (Federal Law Gazette I, p. 1297) as amended by Article 3 and Article 4 of the Act of May 18, 1976 (Federal Law Gazette I, p. 1213) shall remain in force temporarily and are also to be applied in the territory specified in Article 3 of the Unification Treaty (cf. BVerfGE 86, 390 et seq.; Federal Law Gazette 1992, I, p. 1585). The temporary order was confirmed by an order issued on January 25, 1993 (Federal Law Gazette I, p. 270).

B.

I.

99

In Proceeding No. 2 BvF 2/90, the State of Bavaria petitioned this Court, pursuant to Article 93, Paragraph 1, No. 2 of the Basic Law and § 13, No. 6 of the Federal Constitutional Court Act, for abstract judicial review of the provisions in § 218b, Section 1, Sentence 1 and Section 2, § 219, Section 1, Sentence 1 of the Penal Code in the version of the Fifteenth Penal Law Amendment Act and of §§ 200f, 200g of the Reich Insurance Code, inasmuch as these provisions pertain to pregnancy terminations due to the general emergency indication (§ 218a, Section 2, No. 3 of the Penal Code in the version of the Fifteenth Penal Law Amendment Act). The State of Bavaria asserts that the provisions of the Reich Insurance Code are invalid to the extent stated; the State of Bavaria alleges that the legislature must replace the provisions objected to with revised, constitutionally valid provisions within an appropriate period of time.

100

1. Petitioner argues that the provisions of §§ 218b, § 219, Section 1 of the Penal Code, old version fail to provide adequate compensation for the fact that pregnancy termination is not punishable in the event of certain indications.

101

(…)

102

2. Petitioner argues that §§ 200f, 200g of the Reich Insurance Code are unconstitutional and invalid on substantive grounds and by reason of transgression of authority, inasmuch as they guarantee insured persons a right to benefits from the statutory health insurance in the event of pregnancy terminations that are not punishable pursuant to § 218a, Section 2, No. 3 of the Penal Code, old version (emergency indication).

103

a) The legislative authority of the Federal Government, so the State of Bavaria, cannot be derived from Article 74, No. 12 of the Basic Law (“Social Insurance”). The social health insurance serves to protect against illness and related risks through association of and payment of contributions by persons subject to the same kinds of risks. In the case of the so-called emergency indication, however, protection from motherhood is not a typical indemnifiable risk, the expense of which should be borne by the associated insured persons. Motherhood is not an illness, the State of Bavaria argues; even a pregnancy termination that is indicated pursuant to § 218a, Section 2, No. 3 of the Penal Code, old version, would not be accorded the status of therapeutic treatment.

104

The legislative authority also cannot be derived from Article 74, No. 7 of the Basic Law (“Public Assistance”).

105

(…)

106

b) Petitioner also holds that the provisions of §§ 200f, 200g of the Reich Insurance Code are unconstitutional on substantive grounds. The obligation to protect unborn life requires that the organs of state act to protect and promote this life in all areas of the legal system. The provisions objected to contravene this requirement: while the Basic Law does not prevent the legislature from refraining from punishing pregnancy terminations on the basis of a general emergency indication, it does prevent the legislature from providing for benefits from the statutory health insurance in this event and thus aiding in the destruction of a legal value. This would be a case of the state using sociopolitical means not for, but rather against gestating life. Moreover, health insurance benefits would provide an incentive for excessive use of the statutory definition of the general emergency indication. Scruples about pregnancy termination in general would be diminished, inasmuch as pregnancy termination would be caught by the “social net”.

107

(…)

108

Finally, the petitioner also argues that the provisions of the Reich Insurance Code at issue are unconstitutional because it is impossible to ensure that pregnant women avail themselves of these benefits only in the situations provided for in law; these provisions contain no attempt to prevent misuse. Health insurers are not required to make their benefits dependent on certification of the preconditions for indication by means of a sound medical opinion. The laws in force also fail to specify that the physician can only charge for his services in the event of a pregnancy termination if he has fulfilled his obligation to report pursuant to Article 4 of the Fifth Penal Reform Act in conjunction with Article 3, No. 2 of the Fifteenth Penal Law Amendment Act. This kind of linkage could influence physicians to be more faithful in their observance of § 218a, Section 1 and 2 of the Penal Code, old version and enable state public authorities to enforce adherence to the said statutes by administrative means.

II.

109

1. The German Federal Government and the States of Bremen, Hamburg, Hesse, Lower Saxony, North-Rhine Westphalia, Saarland, and Schleswig-Holstein hold that the petition with regard to counseling and ascertainment of indications is unfounded; moreover, the States hold that this petition has been made obsolete by the Unification Treaty.

110

(…)

111

2. The State of Baden-Württemberg holds that the legal situation with regard to certification of counseling and indication does not satisfy the requirements of the Federal Constitutional Court’s Judgment of February 25, 1975.

112

(…)

113

3. The States of Rhineland-Palatinate and Thuringia restricted their comments mainly to a position on counseling practice in their respective states.

C.

I.

116

The State of Bavaria (2 BvF 4/92) and 249 members of the German Federal Parliament (2 BvF 5/92) have petitioned this Court for abstract judicial review of Article 13, No. 1 and 15, No. 2 of the Pregnancy and Family Assistance Act pursuant to Article 93, Paragraph 1, No. 2 of the Basic Law, § 13, No. 6 of the Federal Constitutional Court Act. Petitioner holds § 218a, Section 1 and § 219 of the Penal Code as amended by Article 13, No. 1 (counseling of the pregnant woman in an emergency and conflict situation) and the repeal of Article 4 of the Fifth Penal Reform (federal statistics) provided for in Article 15, No. 2 to be unconstitutional because these provisions violate Article 2, Paragraph 2, Sentence 1 in conjunction with Article 1, Paragraph 1 of the Basic Law.

117

Furthermore, the State of Bavaria holds for the same reason that the obligation to provide for facilities pursuant to Article 15, No. 2 of the Pregnancy and Family Assistance Act (pregnancy termination facilities) and the provision in §24b of the Fifth Volume of the Social Security Code in the version of Article 2 of the Pregnancy and Family Assistance Act are unconstitutional. Moreover, the State of Bavaria argues that the federal government has no legislative authority in such matters. In support of its position, the State of Bavaria also submitted an expert legal opinion by Prof. Dr. Kriele on the subject of non-therapeutic pregnancy termination and the Basic Law.

II.

118

Its essential grounds are stated as follows:

119

1. Article 2, Paragraph 2, Sentence 1, in conjunction with Article 1, Paragraph 1 of the Basic Law places the gestating life under the protection of the state. The obligation to protect pertains not to life as an abstract, but rather to the individual and unique existence of each individual human being. The human being so protected does not only begin to exist as a unique individual at birth, but rather even prior to birth.

120

The various regulative concepts for pregnancy termination (general legalization; restricted criminalization) cannot be comprehended as just two special legislative “approaches” for protecting the unborn “as effectively as possible”. The Basic Law does not permit the legislature to utilize a concept of general legalization of pregnancy termination to better protect life as a whole, since dispensing with the constitutionally imperative criminalization means dispensing with the rights to protection and dignity accorded the individual unborn human being by the Basic Law. Even for lawmakers who would amend the Basic Law, the granting of individual constitutional rights cannot be restricted inasmuch as they are indispensable to the maintenance of an order pursuant to Article 1, Paragraph 1 and 2 of the Basic Law. The general decriminalization of acts of killing intervenes in this core area because it surrenders the most basic legal protection for the threatened legal value.

121

Now as ever, basic illegality – in the opinion of the State of Bavaria, also a fundamental and chronologically unrestricted threat of criminal punishment – is, in addition to all counseling and assistance programs, a necessary and suitable means of protecting the unborn life. It has an influence on the values and behavior of the population. The state avails itself of this legal/ethical signal effect to defend other legal values (environmental criminal law, protection of embryos), apparently regardless of whether there is a realistic chance of criminal prosecution in practice.

122

If § 218a, Section 1 of the Penal Code, new version were adjudged to be constitutional – so argued the State of Bavaria by way of supplementation – this in the end would result in the confirmation in the acceding territory of the concept of the time-phase solution that had been in force there since 1972. The legislature would thus forfeit an opportunity to use the means available to it to create a legal awareness of the value and constitutional protection of unborn life in the population of the new federal states. Specific dangers would also threaten unborn life through medical and pharmaceutical development. If the limited decriminalization of pregnancy termination was compounded by approval of the hormone preparation RU 486 in Germany, this would result in a combination of legal and medical/organizational aids to pregnancy termination. Due to the improvement of prenatal diagnostics parents are often able right now and, in any case will in the foreseeable future be able to determine within the first twelve weeks, whether the expected child will be healthy in every respect. If the woman undergoes a pregnancy termination during the first twelve weeks after conception because the fetus has been diagnosed as injured, then this would be “not illegal” regardless of whether the injury to the state of health was repairable or so grave that a continuation of the pregnancy could not be exacted of the pregnant woman. This would make pregnancy termination possible on purely eugenic grounds. Experience in the United States has shown it is also to be feared that in the future, a large number of women will demand pregnancy terminations because the unborn child is not of the desired gender. The physician cannot counter this desire by saying that the procedure is illegal; even someone who publicly recommended a pregnancy termination on these grounds would still be within the bounds of law.

123

From a constitutional point of view, pregnancy termination can be justified only in individual cases by balancing the interests and legal values involved. This is lacking in the case of the revised § 218a, Section 1 of the Penal Code. This provision would decriminalize pregnancy termination in all instances in which the pregnant woman demands the pregnancy termination, regardless of her grounds for doing so. To this extent, the statute does not incorporate a limitation to justifying exceptional situations. The presence of an emergency and conflict situation is not made a precondition for a legal pregnancy termination during the first twelve weeks anywhere in the provision, but rather is merely generally assumed in the revised version of § 218a, Section 1 and § 219, Section 1, Sentence 2 of the Penal Code. Also, the regular presence of a difficult life situation still does not provide sufficient grounds for justification. There must be an exceptional burden in the individual case which the makes the bearing of the child to term genuinely appear to be a non-exactable hardship for the woman. The statute, however, does not even require that the woman demanding the pregnancy termination subjectively perceive that bearing of the child to term as a non-exactable exceptional hardship. The thesis that woman do not undergo pregnancy terminations “on a whim” reflects only part of the truth. More than a few women hold pregnancy termination to be part of their personal, legally unrestrictable freedom. Moreover, the relatively high number of multiple pregnancy terminations in legal systems with the so-called time-phase solution and public pregnancy termination campaigns suggest that pregnancy termination is also understood and practiced as a means of family planning.

124

The law fails to provide the pregnant woman with any standard whatsoever of when a continuation of the pregnancy can no longer be exacted of her. Thus it abandons precisely those women who are urged to abort by those around them (parents, father of the child, employer), and this at a time when the pregnant woman is especially vulnerable to such pressures. The argument that we must dispense with standards of exactability altogether, because otherwise crises of conscience would be simulated during counseling and the “communication would be twisted into ritual” is not compelling. It is not apparent why general legalization of pregnancy termination should contribute to a more “open” counseling atmosphere, for even pursuant to the laws in force, the woman is already immune to the threat of criminal punishment in the event of counseling.

125

By classifying pregnancy termination as “not illegal” in § 218a, Section 1 of the Penal Code, new version, the legislature makes a basic value judgment pertaining to the entire legal order. It is clear that the provision mentioned seeks and finds immediate connection to § 24b of the Fifth Volume of the Code of Social Security Law. Health insurance benefits would thus necessarily be granted even for those pregnancy terminations performed for reasons that would not withstand the test of the Basic Law. Furthermore, severe new conflicts would arise in the body of law covering the medical profession and in the law of organizations.

126

The legalization is not fully compensated for by the sociopolitical measures provided for in the Pregnancy and Family Assistance Act. A legal prohibition of pregnancy termination is not expressed in this Act. The only way this could happen in social security law is if the legislature did not provide for social benefits in every case of pregnancy termination.

127

For the rest, the sociopolitical measures have yet to be realized in many essential points and their implementation is – just as the reference to “revenue equalization” shows – highly uncertain.

128

2. The counseling should assume the protective function, which is fulfilled in the indication model by the ascertainment of facts justifying one of the indications. Objective supervision would be replaced by procedural effects on the uncontrollable decision-making process. Thus counseling is the “central point” in the statutory concept.

129

Therefore, it follows that counseling must be mandatory. It must also not be limited to simply conveying information about facilities, benefits, and rights, but rather must be aimed at encouraging the woman to bear the child to term. To this end, the woman must present her emergency and conflict situation and show grounds that cause her to demand a pregnancy termination. At any rate, counseling does not take place if the pregnant woman refuses to divulge any information at all. The plausible idea that only counseling “without pressure” has a certain chance of successfully protecting life, cannot be construed to mean either that the pregnant woman may not be confronted with the valuation of pregnancy termination as wrong. Furthermore, it is necessary to ensure by means of normative and institutional precautions that the counselors and counseling centers conduct counseling in keeping with the constitutional and statutory specifications. This, in turn, requires at least minimal record keeping of the counseling session.

130

The counseling provided for in § 219, Section 1 of the Penal Code, new version fails to satisfy these constitutional requirements. It is oriented to the principle of self-determination of the woman. Although § 219 uses the term “counseling” not less than nine times, the only substantive obligations it incorporates are obligations to inform. The statute does not even specify that the subject of the counseling session should be the emergency and conflict situation in which the pregnant woman finds herself. The statute does not even define the counseling session as a conversation. Furthermore, it fails to specify the objective of counseling as encouraging the pregnant woman to continue the pregnancy. The statute merely expresses the expectation on the part of the legislature that the counseling session should serve to protect life. The essence of the statute is found in Section 1, Sentence 3, according to which the counseling session should serve to enable the pregnant woman to make “her own responsible decision of conscience”. This ill-conceived euphemism creates a false pretext which leads to prohibition of certain types of thinking and argumentation and is suitable for surrounding the uncontrollable decision about the pregnancy termination with the aura of a constitutionally protected decision of conscience. Furthermore, the statute fails to include a legal obligation on the part of the pregnant woman to present her personal emergency or even only an obligation to keep minimal records of the counseling session.

131

3. The unconstitutionality and invalidity at least of § 218a, Section 1 and of § 219, Section 1 and Section 3, Sentence 1 of the Penal Code, new version, cannot be determined in isolation. They lead, on the grounds of the Federal Constitutional Court’s Judgment of August 4, 1992, to the invalidity of Article 13, No. 1 of the Pregnancy and Family Assistance Act in its entirety.

132

4. The continued keeping of federal pregnancy termination statistics (cf. Article 4 of the Fifth Penal Reform Act, old version) is constitutionally required from the point of view of the obligation on the part of the legislature to remedy defects in legislation.

133

5. In the opinion of the State of Bavaria, however, the Federal Government lacks the authority to legislate on the obligation to provide for pregnancy termination facilities contained in Article 15, No. 2 of the Pregnancy and Family Assistance Act. The obligation to provide for facilities in Article 15, No. 2 of the Pregnancy and Family Assistance Act is unconstitutional on its face and thus invalid. It extends far beyond an obligation on the part of the highest state authorities to act within the framework of the legal and practical possibilities to provide a sufficient and geographically continuous network of pregnancy termination facilities. The legislature places an obligation upon a specific state authority and thus upon the state to perform an act that is legally and practically impossible or unreasonable. This violates the principles of due process (Article 20, Paragraph 3, Article 28, Paragraph 1, Sentence 1 of the Basic Law) and federal allegiance.

134

6. Finally, the State of Bavaria holds that § 24b of the Fifth Volume of the Code of Social Security Law in the version of Article 2 of the Pregnancy and Family Assistance Act is unconstitutional on its face and by reason of transgression of authority as stated in No. 2 BvF 2/90.

III.

135

The following parties have filed amicus curiae briefs with the Court pursuant to § 77 of the Federal Constitutional Court Act: the German Federal Parliament, which, by way of supplementation, refers to an expert legal opinion by Prof. Dr. Eser, and – in a joint opinion – the States of Brandenburg, Bremen, Hamburg, Hesse, Lower Saxony, North Rhine Westphalia, Rhineland-Palatinate, Saarland, and Schleswig-Holstein. They hold the petitions to be unfounded; the German Federal Parliament refrained from taking a position on the keeping of federal pregnancy termination statistics.

136

1. The legislators of the Pregnancy and Family Assistance Act proceeded from a comprehensive obligation on the part of the state to protect life, including gestating life. They argued in their own favor that the recognition that effective protection of life could not be obtained through the threat of criminal punishment alone and based their legislation on the principle of “help instead of punishment”. This strategy likewise promises significantly better protection of life in the middle and long-term than a mere deterrent punishment which makes the woman a virtual minor subject to legal standards; it also achieves a higher degree of integration of law and ethics.

137

(…)

138

2. (…)

139

3. (…)

140

4. (…)

IV.

141

In preparation for the decision in the proceeding 2 BvF 4, 5/92, the Second Senate of the Federal Constitutional Court commissioned the professors, Dr. Stürner and Dr. Schulin, with the drafting of an expert legal opinion covering the following issues:

142

(1) What would be the effects under current law on various areas of the legal system (e.g., labor law, family law, social security law, the body of law governing the medical profession, general civil law), if the legal system disapproved of pregnancy termination?

143

What would be the effects on this legal situation if, under certain preconditions (currently: indication solution; challenged law: within the first twelve weeks and after counseling) the criminal law provided grounds of justification for pregnancy termination?
(2) In what other conceivable ways could legal disapproval of pregnancy termination be expressed (aside from in the criminal law) in individual areas of the legal system? What legal effects would they have?

V.

144

In the oral proceedings on December 8 and 9, 1992, in which members of the 12th German Federal Parliament belonging to all parliamentary groups participated, the petitioners, the German Federal Parliament, and the States of Brandenburg, Bremen, Hamburg, Hesse, Lower Saxony, North-Rhine Westphalia, Rhineland-Palatinate, Saarland, and Schleswig-Holstein reiterated their written positions. The legal experts, Prof. Dr. Stürner and Prof. Dr. Schulin, explained and expounded upon their written expert legal opinions. The Court also consulted, as informants in issues concerning the laws governing the medical profession, members of the German Medical Association and other professional associations of physicians as well as members of the State Medical Board of Baden-Württemberg. By order of the Senate, it also heard, evidence on issues of counseling and social assistance practice from other experts called by the petitioners and by other persons authorized to give opinions.

D.

I.

145

1) The Basic Law requires the state to protect human life. Human life includes the life of the unborn. It too is entitled to the protection of the state. The Basic Law does more than just prohibit direct interference by the state in the life of the unborn, it enjoins it to protect and support such life, i.e. above all to guard it against illegal interference by third parties (cf. BVerfGE 39, 1 <42>). The obligation to protect is based on Article 1, Paragraph 1 of the Basic Law, which expressly requires the state to respect and protect human dignity; its object, and following from that, its extent are more precisely defined in Article 2, Paragraph 2 of the Basic Law.

146

Unborn human life – and not just human life after birth or an established personality – is accorded human dignity (cf. § 10 I 1 ALR; “Unborn children, even prior to their conception, are entitled to general human rights.”). These proceedings do not require us to decide whether human life begins, as medical anthropology would suggest is the case, when an egg and a semen cell unite. Pregnancy termination is the subject of the challenged provisions, in particular the penal provisions. Thus, what is relevant is the duration of a pregnancy. According to the Penal Code (and this was not disputed by the petitioners and is in conformity with the constitution), the duration of a pregnancy is measured from when a fertilized egg is implanted in the uterus (implantation; cf. § 218, Section 1, Sentence 2 of the Penal Code as amended by Article 13, No. 1 of the Pregnancy and Family Assistance Act) until when a birth begins (cf. § 217 of the Penal Code and in relation thereto BGHSt 32, 194 et seq.). In any case, during the duration of pregnancy what we are dealing with in the case of the unborn is an individual life, with a genetically determined identity, which is thus unique, unmistakable and inseparable. As it grows and unfolds, such life does not just develop into a human being, but develops as a human being (cf. BVerfGE 39, 1 <37>). Irrespective of how the different phases of prenatal development can be assessed from the biological, philosophical, even theological standpoint and irrespective of how they have been judged historically, in any case what is involved are the indispensable stages of development of individual human life. Wherever human life exists, it should be accorded human dignity (cf. BVerfGE 39, 1 <41>).

147

The dignity accorded to human life and also that accorded to unborn life exists for its own sake. In order for it to be respected and protected, the legal system must guarantee the legal framework for its development by providing the unborn with its own right to life (cf. BVerfGE 39, 1 <37>). This right to life which does not depend upon acceptance by the mother for its existence, but which the unborn is entitled to simply by virtue of its existence is an elementary and inalienable right stemming from the dignity of the person. It applies irrespective of any particular religious or philosophical views, which the state is anyway not entitled to pass judgment on, because it must remain religiously and ideologically neutral.

148

b) The duty to protect unborn life relates to an individual life not to human life generally. Its fulfillment is a prerequisite for orderly living together in a state. It is subject to the authority of the state (Article 1, Paragraph 1, Sentence 2 of the Basic Law). That means it is subject to the state in all its functions, including especially the state’s legislative authority. The duty to protect relates to dangers which stem from other persons. It encompasses protective measures, whose aim is to avoid emergencies resulting from a pregnancy or to overcome them, and legal standards of conduct. The two complement each other.

149

2. The standards of conduct for the protection of unborn life are set by the state when it enacts legislation containing regulations and prohibitions as well as duties to act or desist from acting. This also applies to the protection of the unborn vis-à-vis its mother, notwithstanding the bond which exists between the two and which leads to a relationship of “joined twosomeness” between mother and child. Protection of this kind for the unborn vis-à-vis its mother is only possible if the legislature fundamentally forbids her to terminate her pregnancy thereby imposing on her a fundamental duty to carry the child to term. The fundamental prohibition on termination of pregnancy and the fundamental duty to carry a child to term are two inseparably bound elements of the constitutionally required protection.

150

Moreover, protection is necessary against influences which are exerted by third persons – even by the woman’s family and wider social circle. Such influences could be aimed directly at the unborn or even take an indirect form if the pregnant woman were refused needed help, if things were made difficult for her because of the pregnancy, or if she were pressured into terminating the pregnancy.

151

a) Such rules of conduct cannot be left voluntary, but must take legal form. They must be binding and make provision for legal consequences in accordance with the nature of the law as a system of rules concerned with practical application. Nevertheless, a threat of criminal punishment is not the only conceivable sanction in such a case. It can, however, strongly influence a person to respect and heed legal rules.

152

Legal rules of conduct should provide two kinds of protection. First, they should have a preventative and repressive effect in an individual case if injury to the protected legal value is threatened or has already occurred. Second, they should strengthen and support values and opinions on what is right and wrong among the public and promote legal awareness (cf. BVerfGE 45, 187 <254, 256>), so that from the start, due to such legal orientation, the injury of a legal value is not even contemplated.

153

b) The obligation to protect life is not so absolute that it even takes priority, without exception, over every other legal value. This is evidenced by Article 2, Paragraph 2, Sentence 3 of the Basic Law. However, the obligation to protect is not fulfilled simply by applying any kind of protective measure. The extent of the obligation to protect must be determined by viewing, on the one hand, the importance and need for protection of the legal value to be protected by law (in this case unborn human life), and on the other hand, by viewing competing legal values (cf. G. Hermes, Das Grundrecht auf Schutz von Leben und Gesundheit, 1987, p. 253 et seq.). Listed among the legal values which are affected by the right to life of the unborn are – proceeding from the right of the pregnant woman to protection and respect for her human dignity (Article 1, Paragraph 1 of the Basic Law) – above all her right to life and physical inviolability (Article 2, Paragraph 2 of the Basic Law) and her right to free development of her personality (Article 2, Paragraph 1 of the Basic Law).

154

It is the legislature’s task to determine the nature and extent of protection. The Basic Law identifies protection as a goal, but does not define the form it should take in detail. Nevertheless, the legislature must take into account the prohibition on too little protection (regarding the meaning of this term see Isensee in: Handbuch des Staatsrechts, Volume V, 1992, § 111 marginal note No. 165 et seq.) so that, to this extent, it is subject to constitutional control. What is necessary – taking into account conflicting legal values – is appropriate protection, but what is essential is that such protection is effective. The measures taken by the legislature must be sufficient to ensure appropriate and effective protection and be based on a careful analysis of facts and tenable assessments (see I. 4. infra ). The amount of protection required by the Basic Law does not depend on what stage the pregnancy has reached. The unborn’s right to life and its protection under the Basic Law are not graded according to the expiration of certain deadlines or the development of the pregnancy. Thus the legal system also has to provide the same degree of protection in the early phase of a pregnancy as it does later on.

155

c) If the prohibition on too little protection is not to be infringed, the form of protection by the legal order must meet minimum standards.

156

aa) In line with the above, a termination must be regarded for the duration of the pregnancy as fundamentally wrong and thus forbidden by law (cf. BVerfGE 39, 1 <44>) . If there were no such prohibition, control over the unborn’s right to life – be it only for a limited time – would be handed over to the free, legally unbound decision of a third party, who might even be the mother herself, and the legal protection of the life within the meaning of the abovementioned standards of conduct would not be guaranteed. Even reference to a woman’s human dignity and her ability to make responsible decisions herself does not demand that unborn life be abandoned in such a way. Legal protection presupposes that the law lays down conditions governing to what extent and how far one person can interfere with another and does not leave it to the will of one of the parties concerned.

157

A woman’s constitutional rights do not take precedence over the fundamental prohibition on termination of pregnancy. Although such rights also exist vis-à-vis the unborn and must accordingly be protected, they do not extend so far as to allow the constitutional duty to carry the child to term to be suspended even for a limited time. Nevertheless, in certain exceptional circumstances the woman’s constitutional rights make it possible for the legal duty not to be applied and, in some cases, it is in fact even necessary for the duty not to be applied.

158

bb) It is the task of the legislature to determine which exceptional situations will go to make up exceptional circumstances. However, so as not to breach the prohibition on too little protection, it must take into account that conflicting legal values cannot be proportionately balanced because what is being weighed up on the side of the unborn life is not just a matter of a greater or fewer number of rights nor the acceptance of disadvantages or restrictions, but life itself. A balance which guarantees both the protection of the unborn’s life and, at the same time, grants the pregnant woman a right to terminate is not possible because the termination of a pregnancy is always the killing of an unborn life (cf. BVerfGE 39, 1 <43>). A balance cannot be achieved (although alleged that it can be – cf. Nelles in “Zur Sache, Themen parlamentarischer Beratung”, published by the German Parliament, Vol. 1/92, p. 250) whereby for a certain time in the pregnancy the woman’s right to free development of her personality takes precedence and thereafter the unborn is given precedence. If that were the case, then the unborn’s right to life could only have effect if the mother had not decided in favor of killing during the first phase of the pregnancy.

159

Nevertheless, this does not mean that the existence of an exceptional situation, which under the constitution permits the duty to carry a child to term to be dispensed with, can only be considered where there is a grave danger to the woman’s life or a serious impairment to her health. Other exceptional situations, in addition to the ones just mentioned, are imaginable. The criterion used to recognize them is, as determined by the Federal Constitutional Court, that of exactability (cf. BVerfGE 39, 1 <48 et seq.>). This criterion – irrespective of the fact that the woman’s involvement in a pregnancy termination is not to be regarded under the criminal law as an omission – is justified because the prohibition on pregnancy termination, due to the unique relationship between mother and child, is not limited to a woman’s duty not to injure another person’s rights. Instead, the prohibition contains a duty of an intensive nature, affecting the woman’s very existence, a duty to carry and bear the child as well as a further duty to act on behalf of, look after and be responsible for the child such latter duty being an ongoing duty lasting years after the birth (cf. on this M. von Renesse, ZRP 1991, p. 321 <322 et seq.>). Looking ahead at the burdens associated with those duties, it can be seen that in individual cases, severe, and under some circumstances, also life threatening conflict situations can arise in the particular psychological state in which expectant mothers often find themselves during the early phase of a pregnancy. In these conflict situations protection of the woman becomes so essential that the legal order – irrespective of any other duties based on moral or religious views – cannot demand that the woman must under all circumstances allow the right to life of the unborn precedence (cf. BVerfGE 39, 1 <50>).

160

However, non-exactability cannot arise from circumstances which are within the bounds of a normal pregnancy. What is required are rather burdens which force the woman to sacrifice her own existential values to a degree beyond that which can be expected of her.

161

It follows from the above that in respect of a woman’s duty to carry a child to term, in addition to the usual medical and the criminological indications, an embryopathic one – provided that it has been adequately defined in advance – can also be constitutionally valid as an exceptional circumstance. In the case of other emergencies, this will only occur if the severity of the social, psychological or personal conflict is so clearly recognizable that, viewed from the point of view of exactability, congruence with the other indications is retained (cf. too BVerfGE 39, 1 <50>).

162

cc) To the extent that non-exactability limits the woman’s duty to bear the child, it does not relieve the state of its obligation of protection vis-à-vis every unborn human life. The state is compelled by its obligation of protection to support the woman with help and advice thereby convincing her, where possible, to decide in favor of carrying the child to term. This is also assumed by the provision in § 218a, Section 3 of the Penal Code (new version).

163

dd) If the task of protecting human life from killing is one of the state’s elementary protective tasks, then the prohibition on too little protection forbids it from relinquishing its use of the criminal law and the protective measures afforded by the criminal law.

164

It has been from the beginning and still is the criminal law’s task today to protect the elementary values of community life. This includes respect for human life and the inviolability of human life. Accordingly, killing of other human beings is widely punishable. The criminal law is not the primary means of legal protection because of its sharpness. Its application is subject to requirements of proportionality (BVerfGE 6, 389 <433 et seq.>; 39, 1 <47>; 57, 250 <270>; 73, 206 <253>). It is, however, applied as the ultimate measure of protection where certain conduct is not just forbidden, but considered so socially damaging and unbearable for orderly communal living that it must be prevented at any cost.

165

It follows that the criminal law is usually the place to anchor the fundamental prohibition on pregnancy termination and the woman’s ensuing fundamental legal duty to carry the child to term. If, however, there are other constitutionally adequate protective measures it is possible, in a limited number of cases, not to punish unjustified pregnancy terminations. In these cases, the legal system’s prohibition can be clearly expressed in other ways which are in keeping with the constitution (cf. BVerfGE 39, 1 <44, 46>).

166

3. The state does not satisfy its obligation to protect unborn human life simply by hindering life-threatening attacks by third parties. It must also confront the dangers attached to the existing and foreseeable living conditions of the woman and family which could destroy the woman’s willingness to carry the child to term. This is where the obligation to protect touches upon the requirement to protect arising from Article 6, Paragraphs 1 and 4 of the Basic Law (on Article 6, Paragraph 1 cf. BVerfGE 76, 1 <44 – 45, 49 – 50>; on Article 6, Paragraph 4 cf. BVerfGE 84, 133 <155 – 156>). The obligation to protect requires the state to attend to problems and difficulties, which the mother could encounter during the pregnancy. Article 6, Paragraph 4 of the Basic Law contains a mandate to protect which is applicable to all areas of private and public law and extends to the pregnant woman. Viewing motherhood and childcare as work, which lies in the interests of the community and is deserving of its recognition, meets this requirement.

167

The First Report of the Special Committee for the Reform of the Penal Law (German Federal Parliament Publication 7/1981 <new> p. 7) lists as reasons often given for wishing to terminate a pregnancy the following: an unfavorable housing situation, the impossibility of looking after a child parallel to vocational training or working, economic hardship and other material reasons, and in the case of single women, fear of discrimination by the community.

168

a) The care owed to the mother by the community includes an obligation on the part of the state to ensure that a pregnancy is not terminated because of existing material hardship or material hardship expected to occur after the birth. Similarly, if at all possible, disadvantages for the woman in her vocational training or work resulting from a pregnancy ought to be removed. In fulfillment of its obligation to protect unborn human life, the state must attend to problems likely to cause a pregnant woman or mother difficulty, and try, to the extent legally and realistically possible and justifiable, to alleviate or solve those problems. All of this applies not just to the legislature, but to the government and administration as well.

169

Of course, the state cannot and does not have to relieve parents of all burdens and restrictions associated with the “care and raising” of children (Article 6, Paragraph 2, Sentence 1 of the Basic Law). Meanwhile, provisions offering further opportunities for relief – beyond those laid down in Articles 5 to 12 of the Pregnancy and Family Assistance Act – have been enacted. In the public sphere opportunities for more effective protection of mother and child have already been created such as in the fields of housing, in the public service and in regulations concerning work and vocational training.

170

Nevertheless, the state can – and where necessary must – involve third parties to achieve effective protection. Parents who raise children are performing tasks whose fulfillment lies in the interests of the community as a whole as well as in the interests of the specific individuals concerned. For this reason, the state is bound to promote a child-friendly society which in turn also has repercussions for unborn life. The legislature must bear this in mind when making rules, not just in the area of labor law, but also in other private law areas. Thus there are provisions prohibiting the termination of a lease because of the birth of a child as well as provisions regarding consumer loans, their wording and government contract assistance which make it possible or easier for parents to meet their financial obligations following the birth of a child.

171

b) The obligations to protect unborn life, marriage and the family (Article 6 of the Basic Law) and to ensure equal rights for men and women in the workplace (cf. Article 3, Paragraph 2 of the Basic Law as well as Articles 3 and 7 of the International Agreement on Economic, Social and Cultural Rights dated December, 1966 <Federal Law Gazette 1973 II, p. 1570>) compel the state and especially the legislature to lay the right foundations so that family life and work can be made compatible and so that childraising does not lead to disadvantages in the workplace. To achieve this it is necessary for the legislature to invoke legal and practical measures which allow both parents to combine childraising and work as well as to return to work and progress at work after taking a break from work for childraising purposes. Relevant in this context are also the amendments to the Labor Promotion and Vocational Training Act brought about by Articles 6 and 7 of the Pregnancy and Family Assistance Act . In this respect the legislature is on the right track. The same applies to regulations aimed at improving institutional (cf. Article 5 of the Pregnancy and Family Assistance Act) or family childcare (cf. the payments under the so-called equalization of burdens for families such as the childraising benefit or the provisions for a childraising break and advance maintenance payments). The significance of such payments as life protecting measures must be taken into consideration by the legislature when examining state payments if there is a shortage of funds.

172

c) Furthermore, the state must ensure that a parent, who gives up work to devote herself or himself to raising a child, be adequately compensated for any resulting financial disadvantages. We, the Senate, concur with the statements made in this respect by the First Senate in its Judgment dated 7 July, 1992 – 1 BvL 51/86, 50/87 and 1 BvR 873/90, 761/91 (reprint, p. 55 – 56 -BVerfGE 87, 1 et seq.).

173

d) Finally, the mandate to protect also obliges the state to maintain and raise in the public’s general awareness the unborn life’s legal right to protection. Thus the state organs at both the federal and state levels must show that they uphold the protection of life. This relates in particular to school curricula. Public institutions whose job it is to provide health information, family counseling or sex education must strengthen the will to protect unborn life. This is especially true for the sex education provided for in Article 1 § 1 of the Pregnancy and Family Assistance Act. Public and private broadcasters are obliged to respect human dignity when taking advantage of their freedom to broadcast (Article 5, Paragraph 1 of the Basic Law). (Regarding private broadcasting see Article 1, Paragraph 23, Section 1, Sentences 1 and 2 of the Treaty on Broadcasting in Unified Germany dated 31 August, 1991). Therefore, their programs also play a part in protecting unborn life.

174

4. In accordance with what has been stated in points 2. and 3. supra , in order to fulfill its duty to protect unborn life, the state must adopt sufficient legal and practical measures, while at the same time considering the conflicting legal values so as to ensure that appropriate, and as such effective, protection is achieved. For this to be done, it is necessary to create a clear protection concept which combines preventative and repressive elements. It is up to the legislature to develop and transform into law such a protection concept. In doing so, it is not free under the existing constitution to treat termination of pregnancy – other than in exceptionable situations which are constitutionally unobjectionable – as not illegal i.e. allowed. Nevertheless, according to standards still to be more precisely defined, the legislature can decide how it will put into effect the fundamental prohibition on termination of pregnancy in other areas of the law. All in all, the protection concept must be defined in such a way as to make it suitable for providing the required protection without its becoming or appearing like limited permission for pregnancy terminations.

175

The protection concept chosen by the legislature and the form it takes must be sufficient to protect unborn life as is demanded by the constitutional prohibition on too little protection. To the extent that the legislature’s choice amounts to a prognosis about actual developments, especially the effects of its rules, it must be reliable. The Federal Constitutional Court will examine whether the prognoses are warranted when measured by the following criteria.

176

a) The legislature has scope to assess, weigh up and create even where, as is here the case, the constitution binds it to undertake effective and adequate measures to protect a legal value. How its scope is limited depends on various types of factors, in particular, on the characteristics of the relevant area, on the possibility of accurately predicting future developments – such as the effects a rule will have – and on the significance of the legal values at stake (cf. BVerfGE 50, 290 <332 – 333>; 76, 1 <